Karnataka High Court
Sri.K.R.Kumar Naik vs The State By Anti Corruption ... on 26 July, 2022
Bench: M.Nagaprasannapresided Bymnpj
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WP No. 7911 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2022 R
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 7911 OF 2022 (GM-RES)
BETWEEN:
SRI K.R.KUMAR NAIK
S/O RAJENDRA NAIK
AGED ABOUT 37 YEARS
WORKING AS EXECUTIVE ENGINEER
OFFICE OF THE EXECUTIVE ENGINEER
OPERATION AND MAINTENANCE DIVISION
BENGALURU ELECTRICITY SUPPLY COMPANY
LIMITED.
NELAMANGALA - 562 123.
... PETITIONER
(BY SRI SATISH K., ADVOCATE)
AND:
Digitally signed by
PADMAVATHI B K
Location: HIGH
COURT OF
THE STATE BY ANTI CORRUPTION BUREAU
KARNATAKA
REPRESENTED BY ITS DEPUTY
SUPERINTENDENT OF POLICE
BENGALURU CITY POLICE STATION
KHANIJA BHAVAN, RACE COURSE ROAD
BENGALURU - 560 001.
... RESPONDENT
(BY SRI MANMOHAN P.N., SPL.P.P.)
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WP No. 7911 of 2022
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C., PRAYING TO ISSUE WRIT OR ORDER
QUASHING THE IMPUGNED FIRST INFORMATION REPORT
REGISTERED BY THE RESPONDENT- POLICE IN CRIME
NO.24/2022 DATED 16/03/2022 ANNEXUR-E AND ALL
FURTHER PROCEEDINGS PURSUANT THERETO, IN SO FAR AS
THE PETITIONER IS CONCERNED (ACCUSED NO.1)
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 14.07.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner is before this Court calling in question
registration of crime in Crime No.24 of 2022 for offences
punishable under Section 13(1)(b) read with 13(2) of the
Prevention of Corruption Act, 1988 ('the Act' for short).
2. Succinctly stated, facts germane for a decision are
as follows:
The petitioner is a public servant working as an
Executive Engineer in the Karnataka Power Transmission
Corporation Limited. This case brings out a strange
WP No. 7911 of 2022
circumstance where the petitioner is hauled into the
impugned proceedings. A little background for such
hauling of the petitioner into the web of the provisions of
the Act is that, a crime in Crime No.23 of 2022 was
registered against one Sri J.Jnanendra Kumar, Additional
Commissioner for Transport by the respondent/Anti-
Corruption Bureau. The crime against one Sri J.Jnanendra
Kumar was registered on 15-03-2022 on an allegation that
he possessed disproportionate assets to the known source
of income. In connection with the case registered against
one Sri J.Jnanendra Kumar the house of one Sri Munavar
Pasha was searched on 16.03.2022, the next day of
registration of crime against Sri J.Jnanendra Kumar in
Crime No.23 of 2022. During the search two travel bags
and one carton box were found which were said to be
belonging to the petitioner. Based on the search
conducted in Crime No.23 of 2022 a source report was
immediately prepared against the petitioner alleging that
the petitioner had amassed wealth disproportionate to his
WP No. 7911 of 2022
known source of income on the very day i.e., 16-03-2022
and based upon the said source report a fresh crime came
to be registered in Crime No.24 of 2022, also on the very
day i.e., 16-03-2022 for offences punishable under Section
13(1)(b) and 13(2) of the Act against the petitioner.
Pursuant to registration of FIR on 16-03-2022 the
respondent/ACB conduct a raid/search on the house and
office of the petitioner. It is the registration of crime in
Crime No.24 of 2022 that drives the petitioner to this
Court in the subject petition.
3. Heard Sri K. Satish, learned counsel appearing for
the petitioner and Sri P.N. Manmohan, Special Public
Prosecutor representing the respondent.
4. The learned counsel appearing for the petitioner
would contend with vehemence that the entire process
initiated by the ACB is contrary to law, as there was no
preliminary inquiry conducted as is necessary, no source
WP No. 7911 of 2022
report is prepared earlier again as is necessary and
disproportionate assets that are shown in the so prepared
source report is zero. Notwithstanding this, an FIR is
registered, search is conducted and the petitioner is
harassed.
5. On the other hand, the learned counsel
representing the ACB would seek to refute the submissions
to contend that while conducting search in Crime No.23 of
2022 incriminating material was found, may not be in
connection with Crime No.23 of 2022 but to a fresh case of
disproportionate assets. It is his submission that a search
warrant was obtained, FIR is registered and house and
office of the petitioner was searched and the investigation
is on and as such, this Court should not interfere or
interject at this stage and has produced original records
for perusal of the Court.
WP No. 7911 of 2022
6. I have given my anxious consideration to the
submissions made by the respective learned counsel and
perused the material on record.
7. It is not in dispute that the employer of the
petitioner is the Karnataka Power Transmission
Corporation Limited to whom assets and liabilities
statement is to be submitted by the petitioner and the
claim is it has been submitted. It is further not in dispute
that a crime in Crime No.23 of 2022 was registered
against one Sri J.Jnanendra Kumar on 15-03-2022. In
connection with Crime No.23 of 2022 house of one
Munavar Pasha was searched which was a product of
preliminary enquiry conducted by the ACB against Sri
J.Jnanendra Kumar, who allegedly had links with Sri
Munavar Pasha. While searching the house of Sri Munavar
Pasha two travel bags and one carton box, neither
belonging to Sri Munavar Pasha nor Sri J.Jnanendra Kumar
were found. They were allegedly belonging to the
WP No. 7911 of 2022
petitioner. This fact is told by the lady in the house of Sri
Munavar Pasha at the time of search that they belong to
the owner of Flat No.21, which flat belonged to the
petitioner, in the apartment complex. The ACB
immediately went back, prepared a source report,
registered a FIR and conducted search in the house and
office of the petitioner on 17-03-2022.
8. The house of the petitioner was searched on the
basis of FIR registered on 16-03-2022 after drawing up a
source information report which also was prepared on 16-
03-2022. Therefore, the dates assume significance. On
15-03-2022 in connection with Crime No.23 of 2022 of
some other person, the house of a person connected with
the said crime was searched and articles belonging to the
petitioner who was the neighbour of the said flat were
found and immediately thereafter on the very same day a
source information report was prepared and FIR was
registered for offences punishable under Section 13(1)(b)
WP No. 7911 of 2022
and 13(2) of the Act against the petitioner. Thus, it
becomes necessary to notice Section 13(1)(b) and 13(2)
of the Act. They read as follows:
"13. Criminal misconduct by a public
servant.-- (1) A public servant is said to commit the
offence of criminal misconduct,--
(a) if he dishonestly or fraudulently misappropriates or
otherwise converts for his own use any property
entrusted to him or any property under his control
as a public servant or allows any other person so to
do; or
(b) if he intentionally enriches himself illicitly
during the period of his office.
Explanation 1.--A person shall be presumed to
have intentionally enriched himself illicitly if he or
any person on his behalf, is in possession of or has,
at any time during the period of his office, been in
possession of pecuniary resources or property
disproportionate to his known sources of income
which the public servant cannot satisfactorily
account for.
Explanation 2.--The expression "known sources of
income" means income received from any lawful sources.
(2) Any public servant who commits criminal
misconduct shall be punishable with imprisonment for a
term which shall be not less than four years but which
may extend to ten years and shall also be liable to fine."
WP No. 7911 of 2022
Section 13(1) deals with a public servant who is said to
have committed an offence of criminal misconduct.
Criminal misconduct would be, if he intentionally enriches
himself illicitly during the period of his office. Explanation
offered to Section 13(1)(b) is that the person is presumed
to have intentionally enriched himself illicitly, 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 of
pecuniary resources or property disproportionate to his
known sources of income, which the public servant cannot
satisfactorily account for. Known source of income is also
explained.
9. Therefore, to charge a public servant with Section
13(1) which deals with criminal misconduct, and being in
possession of assets disproportionate to his known source
of income, there must be a basis. The basis emanates
from a report. The report in corruption parlance is a source
information report. A source information report cannot be
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WP No. 7911 of 2022
generated at the drop of the hat. It is a responsible work
of a responsible officer i.e., Inspector of Police, under the
guidance and supervision of a superior police officer, a
Deputy Superintendent of Police and it has to be drawn up
after calculating entire period of service of a public servant
and arrive at a conclusion albeit, prima facie, that he has
amassed wealth disproportionate to his known source of
income.
10. These are the broad contours of generation of a
source information report which can become criminal
misconduct as obtaining under Section 13(1) of the Act
which would become punishable under Section 13(2) of
the Act. An allegation of criminal misconduct on a public
servant is serious one. Therefore, it cannot be a casual or
a frolicsome act of the ACB in preparing the source
information report at the drop of the hat. The importance
of the source report being thus, it is germane to notice the
source information report generated in the case at hand,
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WP No. 7911 of 2022
which on the face of it, depicts it being prepared in a
hottest haste. The source information report against
petitioner reads as follows:-
"SOURCE INFORMATION REPORT (S.I.R)
1. Name of the AGO Kumar Naik, Age-37Yrs
aprox(22.08.1984)
2. Present designation (dept) and Executive Engineer, BESCOM,
Group BBMP, Bengaluru. "Group - A"
3. Place of working Executive Engineer, BESCOM,
BBMP, Bengaluru
4. Joined in
5. Joined as (designation and group Joined As Assistant Engineer,
BESCOM.
6. Caste SC-Lambani
7. Native Place
8. Family tree (Parents, Siblings, Father: Rajendra Naik
wife, children, close relatives of
Wife) Wife: Smt.Ashalatha,
9. Total years of Service Not yet ascertained
10 Check Period From the date of joining service
to till date.
11 Whether wife is working?(Y/N) No
12 Wife's designation, Dept, Group, No
Salary particulars, A.P.R.etc.,
AGO PROPERTY DETAILS AS PER RECORDS FOUND DURING SEARCH CONDUCTED IN
PREMISES OF MUNAVAR PASHA
13 Homes/Constructed buildings
.
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WP No. 7911 of 2022
Description Total No. of Name of Place of Total value of
of Property Homes/Construc the the property
ted Buildings property property
owner
#2103, 3- bed room Flat Kumar Kempapur Rs.
Karle Naik a,
Zenith, 2,00,00,000/-
Bangalore
Kempapura (approx)
Bangalore
#43, 301, This address has been figured in one of the document
MU Nest, seized during the searches conducted at the residence of
5th Main, Munavar Pasha, Kale Zenith, Kempapura, Bangalore
near which needs to be further verified and ascertained the
Bhoopasand ownership. The address was found in the KIADB
ra Bus allotment letter issued to Smt.Ashalatha B w/o Kumar
Stop, Naik.
Sanjay
nagar Post,
Bangalore
North,
Bengaluru-
94.
#363 This address has been figured in one of the document
Brindavana, seized during the searches conducted at the residence of
4th Main Munavar Pasha, Karle Zenith, Kempapura, Bangalore
road, which needs to be further verified and ascertained the
Kengeri ownership. The address was found in the Aadhar card of
Satellite the Kumar Naik.
Town,
Kengeri
Gollahalli,
Bangalore
Muralidhar This address has been figured in one of the document
Banjara seized during the searches conducted at the residence of
(29.01.199 Munvar Pasha, Karle Zenith, Kempapura, Bangalore
3) which needs to be further verified and ascertained the
ownership. He is suspected to be the brother of Kumar
C/o Anil Naik and proprietor Ms.Maltesh Industries having PAN
Kumar B., No.CWSPM0215M.
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WP No. 7911 of 2022
#285,
Bhagya
Nidhi,
Railway
mens
layout, 2nd
Phase, Ullal
Upanagar,
ullalu
Bangalore,
Karnataka -
56.
Total
14 KIADB -
sites
Total No. of Name of the Place of the Total value
SQ Fts property property of property
owner
Ashalatha 4103 Sq - Plot Nos 3A5, Rs.1,33,00,
w/o meters. 3A6, of 000/-
Kumar Hardware
Naik, Sector, Hitech
2103, Defence &
Karle Aerospace
Zenith, Park, Industrial
Kempapu Area,
ra, Bengaluru
Urban Dist.
Bangalore
- - - - -
15 Vehicles and other movable properties
At time of
search at the
house of
Sri.Munavar
Pasha, Gold
and silver
articles
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WP No. 7911 of 2022
belongs to
the Kumar
Naik were
found and
the details
are as
follows.
Gold Silver 1290 Gms of Gold Rs.64,00,00 The Gold and
Ornaments and 9,226 Gms of 0-00 Silver were
Silver measured and
valued by
registered Valuer
namely Suresh.
Silk Sarees 9 Nos. Rs.2,00,000
-00
(Approximate
ly)
Cash - Rs.3,06,000
-00
Yet to be ascertained
Total - - -
16 Official income
AGO's Salary (from date of joining
to till date)
AGO's wife Salary (from date of
joining to till date)
AGO's Son/Daughter
Salary/Income (If not married)
Ancestral property Income
Land Income
Income from site/others
Loan Sanctioned (Income)
Filled the loan amount
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WP No. 7911 of 2022
(Expenditure)
Yet to be ascertained
1 D.A. Calculation Total Value of
7 Property
Total Property 4,00,00,000.00 (aprox)
Total Expenditure
Total Property + Total
Expenditure
Total Income
Disproportionate Income
Percentage of disproportionate
Income
Sd/-
(Basavaraj Magadum)
Deputy Superintendent of
Police,
Anti Corruption Bureau,
Bangalore."
(Emphasis added)
11. In the source information report, the column
total years of service of the petitioner reads 'not yet
ascertained'. Therefore, the ACB did not even know how
many years of service a public servant has put in. The
check period which is the most important ingredient of a
source information report is left vague by stating 'from the
date of joining service to till date'. Wife's designation,
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WP No. 7911 of 2022
salary particulars, Annual Property Returns ('APR') etc. are
not even looked into. APR of the petitioner is also not
even looked into. What is seen is property details as per
the records found during the search in connection with
Crime No.23 of 2022 of some other public servant. The
official income at column No.16 that is petitioner's salary
and petitioner's wife's salary reads as 'yet to be
ascertained'. At column No.17 value of total property is
mentioned and percentage of disproportionate income is
zero as it is left completely blank. It is this source
information report that becomes a FIR under Section
13(1)(b) and 13(2) of the Act. Section 13(1)(b) deals with
criminal misconduct against a public servant. The basis
being the source information report, it is trite that the
report assumes a great significance while imputing
allegations of criminal misconduct.
12. The FIR is registered on 16-03-2022 and source
information report is also drawn on 16-03-2022 which is
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WP No. 7911 of 2022
ostensibly done at a jiffy. The Anti-Corruption Bureau
which performs a very significant role in checking
corruption amongst public servants cannot indulge itself in
such casual act of drawing up the source information
report on the instant, registering the FIR and conducting
the search. The entire narration of allegation which would
become criminal misconduct against the petitioner is on
the basis of the records found in somebody else's house in
connection with someone else's crime. Such a source
information report against the petitioner is no report in the
eye of law.
13. The law also contemplates conduct of a
preliminary inquiry in cases of corruption alleged as
against public servants. The Apex Court right from the
judgment in the case of P.SIRAJUDDIN v. STATE OF
MADRAS1 has clearly held that before a public servant,
whatever be his status, is publicly charged with acts of
dishonesty, some suitable preliminary inquiry into the
(1970) 1 SCC 595
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WP No. 7911 of 2022
allegations by a responsible officer should be made. It
could be in the nature of source information report or
otherwise. The observations of the Apex Court are as
follows:
"17. In our view the procedure adopted against the
appellant before the laying of the first information report
though not in terms forbidden by law, was so
unprecedented and outrageous as to shock one's sense of
justice and fairplay. No doubt when allegations about
dishonesty of a person of the appellant's rank were
brought to the notice of the Chief Minister it was his duty
to direct as enquiry into the matter. The Chief Minister in
our view pursued the right course. The High Court was
not impressed by the allegation of the appellant that the
Chief Minister was moved to take an initiative at the
instance of person who was going to benefit by the
retirement of the appellant and who was said to be a
relation of the Chief Minister. The High Court rightly held
that the relationship between the said person and the
Chief Minister, if any, was so distant that it could not
possibly have influenced him and we are of the same
view. Before a public servant, whatever be his
status, is publicly charged with acts of dishonesty
which amount to serious mis-demeanour 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
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WP No. 7911 of 2022
department he belonged to, in general. If the
Government had set up a Vigilance and Anti-
Corruption Department as was done in the State of
Madras and the said department was entrusted
with enquiries of this kind, no exception can of
taken to an enquiry by officers of this department
but any such enquiry must proceed in a fair and
reasonable manner. The enquiring officer must not act
under any preconceived idea of guilt of the person whose
conduct was being enquired into or pursue the enquiry in
such a manner as to lead to an inference that he was
bent upon securing the conviction of the said person by
adopting measures which are of doubtful validity or
sanction. The means adopted no less than the end to be
achieved must be impeccable. In ordinary departmental
proceedings against a Government servant charged with
delinquency, the normal practice before the issue of a
charge-sheet is for someone in authority to take down
statements of persons involved in the matter and to
examine documents which have a bearing on the issue
involved. It is only thereafter that a charge-sheet is
submitted and a full-scale enquiry is launched. When the
enquiry is to be held for the purpose of finding out
whether criminal proceedings are to be restored to
the scope thereof must be limited to the
examination of persons who have knowledge of the
affairs of the delinquent officer and documents
bearing on the same to find out whether there is
prima facie evidence of guilt of the officer.
Thereafter the ordinary law of the land must take
its course and further inquiry be proceeded with in
terms of the Code of Criminal Procedure by lodging
a first information report."
(Emphasis supplied)
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WP No. 7911 of 2022
The judgment in the case of P.SIRAJUDDIN was
rendered 2 score and 10 years ago. The concept of
conduct of preliminary inquiry has been reiterated by Five
Judge Bench of the Apex Court, in the case of LALITA
KUMARI v. GOVT.OF U.P. AND OTHERS2 wherein the
Apex Court has held as follows:
Conclusion/Directions
120. In view of the aforesaid discussion, we
hold:
120.1. The registration of FIR is mandatory
under Section 154 of the Code, if the information
discloses commission of a cognizable offence and no
preliminary inquiry is permissible in such a situation.
120.2. If the information received does not
disclose a cognizable offence but indicates the
necessity for an inquiry, a preliminary inquiry may be
conducted only to ascertain whether cognizable
offence is disclosed or not.
120.3. If the inquiry discloses the commission
of a cognizable offence, the FIR must be registered.
In cases where preliminary inquiry ends in closing
the complaint, a copy of the entry of such closure
must be supplied to the first informant forthwith and
not later than one week. It must disclose reasons in
(2014) 2 SCC 1
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WP No. 7911 of 2022
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
depend on the facts and circumstances of each
case. The category of cases in which
preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3
months' delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
preliminary inquiry."
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WP No. 7911 of 2022
After 51 years of rendering the judgment in the case of
P.SIRAJUDDIN (supra) the Apex Court in the case of
CHARANSINGH v. STATE OF MAHARASHTRA AND
OTHERS3 while following both the judgments i.e., Five
Judge Bench in LALITA KUMARI and in P.SIRAJUDDIN
(supra) has held as follows:
"12. As per the decision of this Court in Lalita
Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 :
(2014) 1 SCC (Cri) 524] , the categories of cases in which
preliminary enquiry may be made are as under : (Lalita
Kumari case [Lalita Kumari v. State of U.P., (2014) 2 SCC
1 : (2014) 1 SCC (Cri) 524] , SCC p. 61, para 120)
"120.6. ... (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."
13. In para 120, this Court concluded and issued
directions as under: (Lalita Kumari case [Lalita
(2021) 5 SCC 469
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WP No. 7911 of 2022
Kumari v. State of U.P., (2014) 2 SCC 1: (2014) 1 SCC
(Cri) 524] , SCC p. 61)
"120. In view of the aforesaid discussion, we
hold:
120.1. The registration of FIR is mandatory
under Section 154 of the Code, if the information
discloses commission of a cognizable offence and
no preliminary inquiry is permissible in such a
situation.
120.2. If the information received does not
disclose a cognizable offence but indicates the
necessity for an inquiry, a preliminary inquiry may
be conducted only to ascertain whether cognizable
offence is disclosed or not.
120.3. If the inquiry discloses the commission
of a cognizable offence, the FIR must be registered.
In cases where preliminary inquiry ends in closing
the complaint, a copy of the entry of such closure
must be supplied to the first informant forthwith
and not later than one week. It must disclose
reasons in brief for closing the complaint and not
proceeding further.
120.4. The police officer cannot avoid his duty
of registering offence if cognizable offence is
disclosed. Action must be taken against erring
officers who do not register the FIR if information
received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not
to verify the veracity or otherwise of the
information received but only to ascertain whether
the information reveals any cognizable offence.
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WP No. 7911 of 2022
120.6. As to what type and in which
cases preliminary inquiry is to be conducted
will depend on the facts and circumstances of
each case. The category of cases in which
preliminary inquiry may be made are as
under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3
months' delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
preliminary inquiry.
120.7. While ensuring and protecting the
rights of the accused and the complainant, a
preliminary inquiry should be made time-bound and
in any case it should not exceed 7 days. The fact of
such delay and the causes of it must be reflected in
the General Diary entry.
120.8. Since the General Diary/Station
Diary/Daily Diary is the record of all information
received in a police station, we direct that all
information relating to cognizable offences, whether
resulting in registration of FIR or leading to an
inquiry, must be mandatorily and meticulously
reflected in the said diary and the decision to
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WP No. 7911 of 2022
conduct a preliminary inquiry must also be
reflected, as mentioned above."
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. While expressing the need for a preliminary
enquiry before proceeding against public servants who
are charged with the allegation of corruption, it is
observed in P. Sirajuddin [P. Sirajuddin v. State of
Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] that :
(SCC p. 601, para 17)
"before a public servant, whatever be his status, is
publicly charged with acts of dishonesty which
amount to serious misdemeanour or misconduct of
indulging into corrupt practice 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 who is occupying 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. If the Government had set up a Vigilance
and Anti-Corruption Department as was done in the
State of Madras and the said department was
entrusted with enquiries of this kind, no exception
can be taken to an enquiry by officers of this
Department.
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WP No. 7911 of 2022
It is further observed that: (P. Sirajuddin case [P.
Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970
SCC (Cri) 240] , SCC p. 601, para 17)
"when such an enquiry is to be held for the purpose
of finding out whether criminal proceedings are to
be initiated and the scope thereof must be limited
to the examination of persons who have knowledge
of the affairs of the person against whom the
allegations are made and documents bearing on the
same to find out whether there is a prima facie
evidence of guilt of the officer, thereafter, the
ordinary law of the land must take its course and
further enquiry be proceeded with in terms of the
Code of Criminal Procedure by lodging a first
information report."
15.1. Thus, an enquiry at pre-FIR stage is held
to be permissible and not only permissible but
desirable, more particularly in cases where the
allegations are of misconduct of corrupt practice
acquiring the assets/properties disproportionate to
his known sources of income. After the
enquiry/enquiry at pre-registration of FIR
stage/preliminary enquiry, if, on the basis of the
material collected during such enquiry, it is found
that the complaint is vexatious and/or there is no
substance at all in the complaint, the FIR shall not
be lodged. However, if the material discloses prima
facie a commission of the offence alleged, the FIR
will be lodged and the criminal proceedings will be
put in motion and the further investigation will be
carried out in terms of the Code of Criminal
Procedure. Therefore, such a preliminary enquiry
would be permissible only to ascertain whether
cognizable offence is disclosed or not and only
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thereafter FIR would be registered. Therefore, such
a preliminary enquiry would be in the interest of
the alleged accused also against whom the
complaint is made.
15.2. Even as held by this Court in CBI v. Tapan
Kumar Singh [CBI v. Tapan Kumar Singh, (2003) 6 SCC
175: 2003 SCC (Cri) 1305], a GD entry recording the
information by the informant disclosing the commission of
a cognizable offence can be treated as FIR in a given case
and the police has the power and jurisdiction to
investigate the same. However, in an appropriate case,
such as allegations of misconduct of corrupt practice by a
public servant, before lodging the first information report
and further conducting the investigation, if the
preliminary enquiry is conducted to ascertain whether a
cognizable offence is disclosed or not, no fault can be
found. Even at the stage of registering the FIR, what is
required to be considered is whether the information
given discloses the commission of a cognizable offence
and the information so lodged must provide a basis for
the police officer to suspect the commission of a
cognizable offence. At this stage, it is enough if the police
officer on the basis of the information given suspects the
commission of a cognizable offence, and not that he must
be convinced or satisfied that a cognizable offence has
been committed. Despite the proposition of law laid down
by this Court in a catena of decisions that at the stage of
lodging the first information report, the police officer
need not be satisfied or convinced that a cognizable
offence has been committed, considering the
observations made by this Court in P. Sirajuddin [P.
Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970
SCC (Cri) 240] and considering the observations by this
Court in Lalita Kumari [Lalita Kumari v. State of U.P.,
(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] before lodging
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the FIR, an enquiry is held and/or conducted after
following the procedure as per Maharashtra State Anti-
Corruption & Prohibition Intelligence Bureau Manual, it
cannot be said that the same is illegal and/or the police
officer, Anti-Corruption Bureau has no jurisdiction and/or
authority and/or power at all to conduct such an enquiry
at pre-registration of FIR stage.
... ... ... ....
18.13. After completing the enquiry, a final
report along with the papers of the enquiry is
required to be sent to the Director General, ACB.
Even, while submitting the final report and the
papers of the enquiry, which are the points to be
considered and/or borne in mind are stated in Para
16 of the Manual. Only thereafter and if it is found
that a cognizable offence is made out and there is
substance in the allegations, an FIR would be
lodged and further investigation will be carried out
after following the procedure as per the Code of
Criminal Procedure. Therefore, a foolproof
safeguard and procedure is provided before lodging
an FIR/complaint before the Court against the
public servant, who is facing the allegations of
corrupt practice. However, as observed
hereinabove, such an enquiry would be conducted
to ascertain whether a cognizable offence is
disclosed or not. As observed hereinabove, even at
the stage of registering the first information report,
the police officer is not required to be satisfied or
convinced that a cognizable offence has been
committed. It is enough if the information discloses
the commission of a cognizable offence as the
information only sets in motion the investigative
machinery, with a view to collect all necessary
evidence, and thereafter to take action in
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accordance with law. Therefore, as such, holding
such an enquiry, may be discrete/open enquiry, at
pre-registration of FIR stage in the case of
allegation of corrupt practice of accumulating
assets disproportionate to his known sources of
income, cannot be said to be per se illegal.
19. However, the next question posed for the
consideration of this Court is, whether to what extent
such an enquiry is permissible and what would be the
scope and ambit of such an enquiry. By the impugned
notice, impugned before the High Court, and during the
course of the "open enquiry", the appellant has been
called upon to give his statement and he has been called
upon to carry along with the information on the points,
which are referred to hereinabove for the purpose of
recording his statement. The information sought on the
aforesaid points is having a direct connection with the
allegations made against the appellant, namely,
accumulating assets disproportionate to his known
sources of income. However, such a notice, while
conducting the "open enquiry", shall be restricted to
facilitate the appellant to clarify regarding his assets and
known sources of income. The same cannot be said to be
a fishing or roving enquiry. Such a statement cannot be
said to be a statement under Section 160 and/or the
statement to be recorded during the course of
investigation as per the Code of Criminal Procedure. Such
a statement even cannot be used against the appellant
during the course of trial. Statement of the appellant and
the information so received during the course of discrete
enquiry shall be only for the purpose to satisfy and find
out whether an offence under Section 13(1)(e) of the PC
Act, 1988 is disclosed. Such a statement cannot be said
to be confessional in character, and as and when and/or if
such a statement is considered to be confessional, in that
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case only, it can be said to be a statement which is self-
incriminatory, which can be said to be impermissible in
law.
20. At this stage, it is required to be noted that in
the present case as such the appellant has produced the
relevant documents of some of the properties owned by
him and the appellant has joined the "open enquiry". It
also appears from the counter filed on behalf of the Anti-
Corruption Bureau that on the basis of the information
given by the appellant, letters have been issued to
various authorities/banks, seeking further and better
particulars. Partial statement of the appellant has already
been recorded. However, as observed hereinabove, such
a statement/enquiry would be restricted only to ascertain
whether a cognizable offence is disclosed or not. Such a
statement cannot be said to be a confessional statement.
After having been satisfied and after conclusion of the
enquiry and on the basis of the material collected, if it is
found that there is substance in the allegations against
the appellant and it discloses a cognizable offence, FIR
will be lodged and the investigating agency has to collect
the evidence/further evidence to substantiate the
allegations/charge of accumulating the assets
disproportionate to his known sources of income.
However, if during the enquiry at pre-registration of FIR
stage, if the appellant satisfies on production of the
materials produced relating to his known sources of
income and the assets, in that case, no FIR will be lodged
and if he is not able to clarify his assets, vis-à-vis, known
sources of income, then the FIR will be lodged and he will
be subjected to trial. Therefore, as such, such an
enquiry would be to safeguard his interest also
which may avoid further harassment to him."
(Emphasis supplied)
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On the bedrock of the principles laid down by the Apex
Court in the cases of P.SIRAJUDDIN, LALITA KUMARI
and CHARANSINGH, if the case at hand is considered,
what would unmistakably emerge is that the entire
proceedings instituted by the ACB against the petitioner
cannot but be termed to be a mockery of the procedure.
The very perusal of the source information report which
had to contain all the particulars would indicate that it
does not contain any particulars. It was no source
information report in the eye of law. In cases where a
public servant is charged with offences punishable under
Section 13 of the Act to become punishable under Section
13(2) of the Act, as they deal with amassing wealth
disproportionate to the known sources of income, every
ingredient that is required to be assessed in the source
report must be present. The check period, the period of
service of the accused Government servant and the
sources of income should be assessed albeit, by a
preliminary inquiry to arrive at a prima facie conclusion
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that the officer is liable to be proceeded against for
criminal misconduct.
14. The afore-quoted incident of discovery of certain
material allegedly belonging to the petitioner could at best
have triggered the conduct of a preliminary enquiry and
could not become the basis for registration of an FIR, as
has been done. There is no preliminary inquiry worth the
name that is even conducted by the ACB in the case of the
petitioner as every act of the ACB i.e., preparation of the
source information report, registration of FIR and conduct
of search on the house of the petitioner have all happened
on one single day - 24 hours. A source information report,
according to the norm or procedure what is followed by
the ACB, requires an Inspector of Police to conduct such
enquiry and collect those documents which would become
a part of a source information report and such source
information report is to be placed before the Deputy
Superintendent of Police who would then give his nod for
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registration of the crime. These procedures and the time
required for these procedures are thrown to the winds. A
perusal at the original records that were placed before the
Court would also indicate no collection of any material, in
the nature of preliminary inquiry or a source information
report taking place prior to registration of the FIR. All that
the file contains is the search conducted in Crime No.23 of
2022 concerning some other officer and that material
being used against the petitioner to register the crime in
Crime No.24 of 2022. Every record is sought to be built
up subsequent to the said date i.e., the date of
registration of the crime against the petitioner.
15. Therefore, it becomes a fit case, where this Court
cannot turn a blind eye to the plea of petitioner for
exercise of jurisdiction of this Court under Section 482 of
the Cr.P.C. and obliterate registration of crime against the
petitioner, failing which, it would become a classic
illustration of a case becoming an abuse of process of law
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and resulting in miscarriage of justice and above all,
putting a premium on the action of the ACB,
notwithstanding the fact that 'the ACB blissfully ignored
the ABC of procedure'.
16. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed.
(ii) The FIR in Crime No.24 of 2022 registered
against the petitioner on 16-03-2022 and all
further proceedings thereto stand quashed.
(iii) The petitioner is entitled to all consequential
benefits that would flow from quashing of the
FIR in Crime No.24 of 2022.
Sd/-
JUDGE
BKP
