Karnataka High Court
Sri D K Shivakumar vs Central Bureau Of Investigation on 19 October, 2023
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF OCTOBER, 2023
R
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
WRIT PETITION NO.15251 OF 2022(GM-RES)
BETWEEN
SRI D K SHIVAKUMAR
S/O LATE SRI S K KEMPEGOWDA
AGED ABOUT 60 YEARS
R/A NO.252, 18TH CROSS
SADASHIVA NAGAR
BENGALURU - 560 080
AS INDICATED IN THE FIR
SRI D K SHIVAKUMAR
S/O LATE SRI D K KEMPEGOWDA
FORMER MINISTER OF KARNATAKA
PRESENTLY MLA
KARNATAKA LEGISLATIVE ASSEMBLY
BANGALORE
R/AT HOUSE NO.602/A5
KENKERI 18TH CROSS ROAD
UPPER PALACE ORCHARDS
SADASHIVANAGAR
BENGALURU - 560 080 ... PETITIONER
(BY SRI C.H. JADHAV, SENIOR ADVOCATE
AND SRI SANDESH J. CHOUTA, SENIOR ADVOCATE
FOR SRI CHETHAN JADHAV, ADVOCATE)
AND
CENTRAL BUREAU OF INVESTIGATION
ANTI-CORRUPTION BRANCH
BENGALURU
2
NO.36, BELLARY ROAD
GANGANAGAR
BENGALURU - 560 032
REPRESENTED BY ITS
SUPERINTENDENT OF POLICE ... RESPONDENT
(BY SRI PRASANNA KUMAR P, SPECIAL COUNSEL)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO QUASH THE IMPUGNED FIRST INFORMATION
REPORT IN RC 10(A) /2020 REGISTERED BY THE RESPONDENT,
AGAINST THIS PETITIONER FOR THE OFFENCES PUNISHABLE
UNDER SECTION 13 (2) READ WITH SECTION 13(1)(e) OF
PREVENTION OF CORRUPTION ACT, 1988 VIDE ANNEXURE-F
AND ALL FURTHER PROCEEDINGS PURSUANT THERETO, ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 31.7.2023 THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
This writ petition is filed by the petitioner under
Articles 226 and 227 of Constitution of India read with
Section 482 of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C.') to quash the FIR
registered in RC No.10(A)/2020 by the respondent-Central
Bureau of Investigation (CBI), against this petitioner for
the offence punishable under Section 13(1)(e) read with
Section 13(2) of Prevention of Corruption Act, 1988
(hereinafter referred to as 'P.C. Act').
2. Heard the arguments of both the learned Senior
counsels appearing for the petitioner and learned Special
counsel for the CBI.
3. The brief facts of the case of the petitioner is
that, the Income Tax Authorities conducted raid on the
house of the petitioner and they said to have recovered
Rs.8,59,69,100/- out of which Rs.41,00,000/- were
recovered from the petitioner. Subsequently, the Income
Tax Authorities registered a complaint against the
petitioner under the Income Tax Act in Spl.C.No.759/2018
and on the basis of the said offence, the Enforcement
Directorate (ED) registered the FIR against the petitioner
in ECIR/04/HQ/2018 for the offence punishable under
Sections 3 and 4 of the Prevention of Money Laundering
Act, 2002 (for short 'PML Act'). They issued the notice to
the petitioner under Section 50 of the PML Act and then
the ED sent a report to the Chief Secretary of Karnataka
given consent under Section 6 of The Delhi Special Police
Establishment Act, 1946 (in short 'DSPE Act') and in turn
the Chief Secretary of Karnataka sanctioned on 25.9.2019,
for prosecuting the case against the petitioner under the
P.C. Act. Accordingly, the CBI registered FIR on
03.10.2020 in R.C.No.10(A)/2020 for the offence
punishable under Section 13(1)(e) read with Section 13(2)
of the P.C. Act. The petitioner challenged the FIR on
various grounds.
4. Learned Senior counsel for the petitioner
Sri.Sandesh Chouta has contended that the petitioner is
the President of Karnataka Pradesh Congress Committee
(KPCC). He is renowned politician and also engaged in
various businesses like mining, real estate development,
and other such businesses and he was also a member of
Legislative Assembly from 1989, till date. He is
representing in Satanuru Assembly Constitution and other
constituency. He is occupied in various positions and
serving the people of Karnataka. During his tenure as MLA,
the Indian National Congress Party offered the MLA ticket
and he was elected as MLA, he has worked as Minister in
the Congress Government, he has discharged the duties
with true faith and allegiance to the Constitution and the
rule of law. He further contended that he hails from
agricultural background, his entire family was also involved
in agricultural activities and development of the lands and
generated substantial wealth from his successive
businesses, in various fields including the Education field.
The petitioner further contended during several decades
being Income Tax Assessee and has been filing Income
Tax returns without any evasion. The petitioner also
required to file affidavit along with the nomination paper,
while contesting the election before the returning officer
and also declared Assets and Liabilities before the
Karnataka Lokayuktha. The petitioner also earned good
respect and command in the State of Karnataka, but the
opposite parties hatched many conspiracies against the
petitioner, to scuttle his political growth and made several
attempts to tarnish his image and reputation. Presently,
the power with the Central Government under whose
control the CBI operates is inimical to the petitioner.
5. It is further contended that in July-August 2017
the petitioner one among the backbone of the Congress
National party, during Rajysabha elections of the State of
Gujarat, he played active role in discharging such duties,
which was appreciated at the national level as a resultant
he was made target of the department and agencies from
such time onwards.
6. It is further contended on 02.08.2017, when the
petitioner was at resort in outskirts of Bengaluru, while
discharging his political duties, a search was conducted by
the Income Tax officials who also visited the resort and he
was compelled to leave the place. Later, he was brought
to the house and during various raid, the Income Tax
Authorities have collected a sum of Rs.8,59,69,100/- out
of which only Rs.41 lakhs was recovered from the
petitioner. Subsequently, the petitioner offered the
explanation for the source of funds in the assessment year
2018-19, which was filed subsequently. The Income Tax
Authorities initiated proceedings for evading payment of
tax under the Income Tax Act. It is further submitted that
Income Tax Department filed complaints before the Special
Court for economic offences under Section 200 Cr.P.C. for
the offences punishable under Sections 276-c(1), 277, 278
of Income Tax Act and Sections 193, 199, 120B of IPC.
The Principal Director of IT accorded sanction to prosecute
and the said court issued the summons to the petitioner.
7. It is further contended, that the petitioner is a
sitting MLA and subsequently the case was transferred to
Special Court trying the offences relating to MP and MLA
and renumbered as CC.No.3079/2021. It is further
contended that the petitioner filed Spl.C.No.3821/2020 in
respect of the said special case, the Hon'ble Supreme
Court issued notice to the Income Tax Authority.
8. It is further contended on 29.8.2018, the
Enforcement Directorate, Delhi registered case against the
petitioner in ECIR/04/HQ/2018, based on the information
shared by the Income Tax Authorities. Thereafter on
17.1.2019, the ED issued summons under Section 50 of
the PML Act and demanded his presence in Delhi for
questioning. The petitioner approached High Court for
challenging the ED proceedings in Writ
Petition.No.6210/2019, which was dismissed and the
petitioner himself furnished all relevant information and his
source of income and on various allegation, the ED
arrested the petitioner on 3.9.2019 and he was granted
bail on 23.10.2019 by Delhi High Court.
9. Learned counsel for the petitioner further
contended the ED filed an appeal against the granting of
the bail, which also came to be dismissed. The petitioner
also filed the SLP for dismissing the petition filed by the
petitioner against the ED proceedings in
SLP.Crl.No.9910/2019, which is pending. Subsequently,
ED filed complaint before the special court for PMLA in
Delhi on 20.06.2022. The investigation conducted by the
ED alleging collected several documents and some
transactions were conducted on behalf of the petitioner
through public servants. On 09.09.2019, ED issued letter
to State Government under Section 66(2) of PMLA Act, for
taking action. The State Government by obtaining opinion
of the Advocate General referred the letter to the CBI for
investigating the case against the petitioner. The
petitioner also filed a Writ Petition No.10479/2020 for
challenging the sanction for investigation to CBI where
there was an order not to take coercive step, which is
pending for consideration. It is further contended this FIR
was registered by the CBI on the basis of the sanction of
the State Government and on the report of preliminary
enquiry conducted by the CBI. It is contended by the
petitioner, the Statement of his income, expenditure and
assets were already submitted to the respondent one year
back and till now they have not filed closure report under
Section 173 of the Cr.P.C. The respondent agency issuing
summons to several persons to appear for investigation
and abnormal delay in filing the report under Section 173
of Cr.P.C is causing great hardship and embarrassment to
the petitioner. The FIR does not disclose the alleged
offence and the so called investigation is continued for
unreasonably long period, hence the petitioner filed this
petition before the Court.
10. The petitioner also raised further grounds as
follows;
(i) The allegation made in the FIR even if
they are taken on their face value and accepted
in their entirety do not prima facie constitute
any offence under Section 13 1(e)read with
13(2) of PC Act that.
(ii) The provision of Section 13 of PC Act
that the accused is a public servant, as an
individual having possession of the property
disproportionate to his known source of income,
which the public servant cannot satisfactorily
account. The provision un-mistakenly is
applicable to a public servant which does not
contemplate the family as a unit. The possession
of the property by a family as own belonging to
any member of the family other than public
servant is irrelevant, the provision does not
contemplate the property held by joint family or
a firm. Hence, the public servant not required to
give satisfactory explanation for his income but
not others.
(iii) The expression 'family members' is a
vague term, at present there are number of
family members and their identity not disclosed.
(iv) the FIR does not refer to any property
in possession of the sole accused which is
referred as Sri.D.K. Shivakumar and his family
members together at para 12.5.1 of the FIR
stating that they are in possession of movable
and immovable property to the tune of
128,60,81,700/- and total value of asset during
check period of as on 304.2018 is tune of
Rs.162,53,44,494/- and their toal income and
receipts was tune of Rs.166,79,58,216/- total
expenditure was Rs.113,12,16,585/- thereby
they are found in possession of disproportionate
assets worth of Rs.74,93,40,69/- which is
44.93%. The same cannot be satisfactorily
explained by the accused.
(v) It is further contended, the extract
from FIR discloses the property of the accused
and his family and also expenditure and
disproportionate assets and do not pertain to the
value of assets, expenditure which is required as
per the law. There is no allegation that any
other person is in possession of the property on
behalf of the accused. The registration of the FIR
is only on the basis of allegation which do not
constitute an offence for cognizable offence.
The cognizable offence defined under Section
13(1)(e) of PC Act was defined and it attracts
only when the public servant failed to
satisfactory give explanation of peculiar resource
or of property. There is no indication of the fact,
that any opportunity to explanation given to the
petitioner, to show that he cannot satisfactorily
explain that itself is illogical.
(vi) The impugned FIR registered by the
CBI, the ED on whose initiation, the Government
accorded sanction and have taken investigation
in order to target the petitioner out of political
malafide's against him.
(vii) The earlier Writ Petition
No.10479/2020 filed before this court in respect
of according sanction by the State Government,
while registering on 3.10.2020 there was interim
protection available for the petitioner in the said
writ petition, despite the same, the FIR has been
registered. Search and seizure was conducted
which indicates the malafide of respondent
agency.
(viii) The FIR registered for the offence
under Section 13(2) read with 13(1)(e) of PC
Act, section 13 (2) is a penal provision for the
offence under Section 13(1) of the PC Act, which
came into force from 26.7.2018 vide 16 Act of
the 2018. Section 13(1)(a) to (e) of PC Act are
substituted by new provisions i.e., section
13(1)(a) and (b). There is no provision as
13(1)(e) of PC Act in the new amendment of the
PC Act. hence invocation of penal provision
under Section 13(2) to punish the alleged
offence under non-existing provision is fatal to
the very maintainability of the FIR.
(ix) The respondent has malafidely
registered FIR were punishable under the un-
amended PC Act as it stood prior to the
amendment of 2018 as Amendment Acts came
into force from 26.7.2018. The action of the
respondent is fundamentally , inherently illegal.
The illegality has resulted and caused injustice
to the petitioner, the explanation to the known
source of income in the amended Act is wider
than the explanation prior to the amendment
and this benefit ought to be retrospectively
given in investigation, imitated after the
Amendment Act came into force.
(x) The details of preliminary enquiry is
missing in the FIR which is contravention of the
chapter 9 of the CBI Manual, the FIR is without
proper application of mind. The non extending
opportunity to explain the source of income
during preliminary enquiry has lead to failure of
principle of natural justice.
(xi) The petitioner hails from respective
family and he was paying Income Tax regularly.
(xii) The petitioner also submitted the
nomination and the affidavit for having declared
the assets and liability before the Election
commission and also the declaration of Assets
and Liabilities to the Lokayuktha. He also
submitted, that the letter issued by the Income
tax authorities for asking him to pay balance
amount and the Income Tax Authorities not
satisfied on the reply and prepared an appeal to
Income Tax Appellate Tribunal.
(xiii) Registering the FIR by ED as well as
CBI which amounts to multiple agencies
investigating the same set of facts and
allegations with a malafide intentions which is
opposed to the constitution and fundamental
right of the petitioner.
(xiv) The petitioner submitted the
Statement of Income, Expenditure and Assets
on 15.6.2021, despite lapse of one year, no final
report was filed for more than one year.
(xv) The FIR registered by CBI is beyond
the Government order for according sanction
and the investigation took up, without any
authority of law.
(xvi) The petitioner is sitting MLA of
Karnataka Assembly, the provision of 17A of PC
Act, are squarely applicable to him when
conducting an enquiry or investigation to public
servant, it is mandatory to obtain sanction from
the competent authority. No sanction under
Section 17A has been issued.
(xvii) As per the judgment of Hon'ble
Supreme Court in Premchand Singh Vs State
of Uttar Pradesh, reported in 2017 SCC
Online All 1264, the second FIR is not
sustainable.
(xviii) The IT Department, ED and CBI are
all investigating the very same alleged offence
against the petitioner with an ulterior motives
and satisfy the political vendetta of rivals.
(xix) It is further contended, there is no
reasonable ground to believe the petitioner
committed an offence under the PC Act, the FIR
was registered by the CBI with a malafide and
Arbitrariness.
11. On the above said grounds, the petitioner
prayed for quashing the FIR. Learned senior counsel relied
upon various judgment of the Hon'ble Supreme Court in
support of his case.
12. Learned Senior counsel, Sri.C.H.Jadhav also
argued in length on behalf of the petitioner.
13. Per contra, the respondent-CBI filed statement
of objections and the learned counsel for the CBI has
contended that the Income Tax Authorities registered a
complaint against the petitioner under the Income Tax Act,
as well as IPC and in pursuance of the said complaint, the
offences are schedule offences under the PMLA Act. Hence
ED commenced the investigation against the petitioner, in
order unearthed the proceeds of crime. During the course
of investigation, the ED ascertained that the petitioner had
undisclosed income of approximately Rs.50 crores and was
involved in numerous benami investment in properties
through his family members that of Rs.8.59 crores of
unaccounted money was seized from the petitioner. The
investigation conducted by the ED has felt that the
petitioner violated provisions of PC Act, while working in
Government of Karnataka. Hence, finding of ED was sent
to the Chief Secretary of Government of Karnataka, inturn,
the State Government given consent to the CBI for
investigating the matter against the petitioner vide order
dated 25.9.2019. In pursuance of the notification dated
27.2.2020, the CBI registered the FIR against the
petitioner on 03.10.2020 for the offence punishable under
Section 13 (1)(e) read with 13 (2) of PC Act. It is further
contended that during the course of enquiry, it was
disclosed that the petitioner and his family members were
in possession of movable and immovable properties to the
tune of Rs.33,92,62,793 crores at beginning of check
period dated 1.4.2013, as per the election affidavit filed by
him on 13.4.2013. During the check period the family
members have acquired Rs.128,60,81,700/- and the value
of assets, end of the check period as on 13.4.2018 was
Rs.162,53,44,494/-. It is further stated that the total
income of the family members and the petitioner was
Rs.166,79,58,216/- and expenditure was
Rs.113,12,16,584/-. It was revealed the petitioner was in
possession to assets in disproportionate to tune
Rs.74,93,40,069/- which is 44.93%. The public servant
having disproportionate asset than the known source of
income and he cannot satisfactorily explain, hence FIR has
been registered.
14. It is further contended previously granting of
sanction of the Government as has been challenged by one
Shashikumar Shivanna which was dismissed. The order
was also confirmed and denying the other allegations
made in the petition against respondent for false
implication as false and contended the petitioner being
public servant, amassed properties in his name and also
family members more than the known source of income,
also having property in benami names. The investigation is
under progress. The offence made out in the FIR is
cognizable one. Therefore, the FIR cannot be quashed.
Even the FIR is not encyclopedia to give all details. The
petitioner already submitted his stand and his assets, by
submitting the statement Nos.1 to 6 which is under
scrutiny, there are lot of properties and documents
produced by the petitioner which required more time for
investigation. Further contended, the contention of the
petitioner that registering of the ECIR and taken up the
investigation no barring on the investigation taken by the
CBI and the PMLA Act, and the offence under PC Act, are
independent and distinct from one another. The
respondent denied the para wise allegation made by the
petitioner and also contended the judgments relied by the
petitioner does not fall in any parameters by the principle
laid down by the Hon'ble Supreme Court in the case of
STATE OF HARYANA VS. BHAJANLAL reported in 1992
SUPP. (1) SCC 335. The State Government given consent
on the basis of the opinion of the advocate general and the
sanction granted by the State Government, has been
challenged which was upheld by the court. Therefore, it is
contended the petitioner not made out any ground to
interfere with the investigation and hence prayed for
dismissing the petition. Learned special counsel relied upon
various judgments of the Hon'ble Supreme Court.
15. Having heard the arguments of both side, the
point that arise for my consideration is:
" Whether the petitioner made out sufficient
ground for quashing the FIR registered by the
CBI in R.C.No.10(A)/2020 for the offence
punishable under Section 13(1)(e) read with
13(2) of P.C. Act?"
16. The learned counsel for the petitioners mainly
challenged the FIR on four grounds which are as under:
(i) The investigation is illegal since there is
no prior order of the police officer not
below the rank of Superintendent of
Police as mandated under Section 17 of
P.C. Act.
(ii) The investigation commenced by the CBI
without obtaining previous approval
under Section 17A of P.C. Act.
(iii) The FIR is liable to be quashed on the
ground that private individuals have
been clubbed with the public servant, not
on account of benami transaction holding
that the public servant possesses
disproportionate Assets.
(iv) During the arguments, it is also
contended the very calculation made by
the CBI for registering the FIR in respect
of Assets and Liabilities during beginning
of the check period is not correct.
(v) The initiation of present proceedings is
liable to be quashed on the ground of
malafide attributable to political
opponents (political malice).
17. Point No.(i) - Regarding Investigation taken by
the Police Inspector of CBI is illegal as there is no prior
order for authorizing a Police Officer not below the rank of
Police Inspector by S.P. as mandated under Section 17 of
the P.C. Act.
18. The learned counsel for the petitioner has
strenuously contended that the Police Officer below the
rank of S.P. cannot investigate the matter and there is no
order for authorizing the Investigating Officer below the
rank of S.P. to investigate the matter. Therefore the very
investigation itself is liable to be quashed. On the other
hand, the CBI counsel has vehemently contended that in
the FIR itself the Investigating Officer has been named by
the S.P. while registering the FIR and there was
authorization issued by the Higher Officer for authorizing
the Additional S.P. to investigate the matter, therefore, the
investigation taken by the CBI cannot be called as illegal.
It is worth to mention the provisions of Section 17A of the
amended P.C. Act which is as under:
"17. Persons authorized to investigate:
NOTWITHSTANDING anything contained the
Cr.P.C. 1973 (2 of 1974 ) no police office
below the rank, -
(a) In the case of Delhi Special Police
Establishment, of an Inspector of Police;
(b) ---
(c) ---
shall investigate any offence punishable
under this act without the order of a
Metropolitan Magistrate or a Magistrate of the
First Class, as the case may be, or make any
arrest there for without a warrant :
PROVIDED xxxx (are not relevant)
PROVIDED FURTHER - That an offence
referred to in [clause b of sub Section (1)] of
Section 13 shall not be investigated without
the order of a police officer not below the rank
of a Superintendent of Police."
19. On bare reading of the provision of Section
17A of amended P.C. Act, an Inspector of Police can
investigate the matter in DSPE Act registered by the CBI
under the amended P.C. Act, 2018 with effect from
26.07.2018 and other than the metropolitan areas, like
Bombay, Calcutta, Madras and Ahmedabad and in any
other metropolitan area, an Assistant Commissioner of
Police can investigate the matter and elsewhere a Dy.S.P.
or equivalent Police Officer can investigate the matter.
20. However, the Section 17 of the un-amended
P.C. Act, where the case was registered by the CBI an
Inspector of Police can investigate the matter provided
other officers without the order of a Police Officer not
below the rank of a Superintendent of Police. The
Unamended P.C. Act, 1988 prior to 2018 under Section 17
empowers the Inspector or Police to investigate the matter
without permission of the Magistrate provided if he has
been authorized by the Superintendent of Police. Now, on
perusal of the FIR registered by the CBI at Column
No.13(2), reveals, it is referred the name of the
Investigating Officer along with the rank as under:
1) Sri Y Harikumar,
Addl. Supdt. of Police,
CBI, ACB, Bangalore
21. The FIR has been registered by one Thomson
Jose, IPS, Superintendent of Police and Head of Branch,
CBI, ACB, Bangalore. On perusal of the FIR, it is clearly
mentioned that the S.P. registered the FIR and he has
authorized an Addl. S.P. as Investigating Officer.
22. The learned Senior counsel for the petitioner
has relied upon the judgment of the Hon'ble Supreme
Court in the case of State of M.P. and Others vs. Ram
Singh and other connected appeals reported in (2000)
5 SCC 88 in a similar circumstances, the Hon'ble Supreme
Court has held at paragraph No.15 as under:
"15. We are not satisfied with the finding of the
High Court that merely because the order of
the Superintendent of Police was in typed pro
forma, that showed the non-application of
mind or could be held to have been passed in a
mechanical and casual manner. As noticed
earlier the order clearly indicates the name of
the accused, the number of the FIR, the nature
of the offence and power of the Superintendent
of Police permitting him to authorize a junior
officer to investigate. The time between the
registration of the FIR and authorization in
terms of the second proviso to Section 17
shows further the application of mind and the
circumstances which weighed with the
Superintendent of Police to direct authorization
to order the investigation."
23. The Hon'ble Supreme Court has set aside the
order of the High Court for quashing the FIR on the ground
that there is no authorization for investigating the matter
below the rank of S.P.
24. The learned CBI counsel also produced the
authorization issued by the S.P., Thomson Jose on
03.10.2020 authorising Sri Y.Harikumar, ASP to
investigate the matter and subsequently, after the
retirement of the said Harikumar, one M.K. Baiju, the
Inspector of Police has been authorized to investigate the
matter as per the order of S.P. dated 31.07.2021 and
subsequently on 8.2.2022, an another officer one Satish
Chandra Jha, Deputy Superintendent of Police was
appointed as Investigating Officer. On perusal of these
authorization issued by the S.P. time to time, by exercising
the power under Section 17 of the P.C. Act. Therefore, the
contention of the learned counsel for the petitioner that
investigation taken by the officers below the rank of S.P. is
illegal and it cannot be acceptable on the ground urged by
the learned Senior counsels for the petitioner and in view
of the judgment passed by the Hon'ble Supreme Court in
Ram Singh case supra, the FIR cannot be quashed.
25. Point No.(ii) - Regarding the previous approval
of the Government required under Section 17A of P.C. Act.
The learned Senior counsel for the petitioner has
strenuously contended that in order to register the FIR
under the P.C. Act, the prior approval of the State
Government under Section 17A of P.C. Act is required
which is a mandatory under Section 17A of the P.C. Act.
But the CBI has not obtained any such order under Section
17A of the P.C. Act. The learned Senior counsel relied upon
various judgments of the Hon'ble Supreme Court which are
referred below after referring the arguments of the CBI
counsel
26. The learned CBI counsel has vehemently
contended that prior approval under Section 17A of the
P.C. Act is not applicable to the present case and
contended that Section 17A is applicable only to the cases
where the "offence is relatable to any recommendation
made or decision taken by such public servant in discharge
of official functions or duties and it is contended that
Section 17A is applicable only to those recommendations
or decisions taken during the discharge of duties and not
for every offence as suggested by the learned counsel for
the petitioner and further contended that the alleged
offence against the petitioner under Section 13(1)(e) of
the P.C. Act which is not relatable to any
recommendations/decisions taken during official duty.
Hence, the question of obtaining permission under Section
17A of P.C. Act does not arises.
27. In support of his arguments, the learned CBI
counsel relied upon the judgment of Co-ordinate Bench of
this Court in the case of B.S. Yediyurappa vs. State of
Karnataka passed in Writ Petition No.29046/2017.
28. In view of the rival contention of both the side,
it is worth to mention Section 17A of the amended P.C. Act
which is as under:
"Section 17A. Enquiry or Inquiry or
investigation of offences relatable to
recommendations made or decision taken by
public servant in discharge of official
functions or duties.
[17A. Enquiry or Inquiry or investigation of
offences relatable to recommendations made or
decision taken by public servant in discharge of
official functions or duties.-- No police officer shall
conduct any enquiry or inquiry or investigation into
any offence alleged to have been committed by a
public servant under this Act, where the alleged
offence is relatable to any recommendation made
or decision taken by such public servant in
discharge of his official functions or duties, without
the previous approval--
(a) in the case of a person who is or was
employed, at the time when the offence was
alleged to have been committed, in connection with
the affairs of the Union, of that Government;
(b) in the case of a person who is or was
employed, at the time when the offence was
alleged to have been committed, in connection with
the affairs of a State, of that Government;
(c) in the case of any other person, of the authority
competent to remove him from his office, at the
time when the offence was alleged to have been
committed:
Provided that no such approval shall be necessary
for cases involving arrest of a person on the spot
on the charge of accepting or attempting to accept
any undue advantage for himself or for any other
person:
Provided further that the concerned authority shall
convey its decision under this section within a
period of three months, which may, for reasons to
be recorded in writing by such authority, be
extended by a further period of one month.]"
29. The learned Senior counsel for the petitioner
has relied upon the judgment of the Hon'ble Supreme
Court in the case of Yashwant Sinha and Others vs.
CBI reported in (2020) 2 SCC 338, wherein at paragraph
Nos.118 and 119, it has held as under:
"118. Therefore, the petitioners have filed the
complaint fully knowing that Section 17-A
constituted a bar to any inquiry or enquiry or
investigation unless there was previous
approval. In fact, a request is made to at least
take the first step of seeking permission under
Section 17-A of the 2018 Act. Writ Petition
(Criminal) No. 298 of 2018 was filed on 24-10-
2018 and the complaint is based on non-
registration of the FIR. There is no challenge to
Section 17-A. Under the law, as it stood, both
on the date of filing the petition and even as of
today, Section 17-A continues to be on the
statute book and it constitutes a bar to any
inquiry or enquiry or investigation. The
petitioners themselves, in the complaint,
request to seek approval in terms of Section
17-A but when it comes to the relief sought in
the writ petition, there was no relief claimed in
this behalf.
119. Even proceeding on the basis that on
petitioners' complaint, an FIR must be
registered as it purports to disclose cognizable
offences and the Court must so direct, will it
not be a futile exercise having regard to
Section 17-A. I am, therefore, of the view that
though otherwise the petitioners in Writ
Petition (Criminal) No. 298 of 2018 may have
made out a case, having regard to the law
actually laid down in Lalita Kumari [Lalita
Kumari v. State of U.P., (2014) 2 SCC 1 :
(2014) 1 SCC (Cri) 524] , and more
importantly, Section 17-A of the Prevention of
Corruption Act, in a review petition, the
petitioners cannot succeed. However, it is my
view that the judgment sought to be reviewed,
would not stand in the way of the first
respondent in Writ Petition (Criminal) No. 298
of 2018 from taking action on Ext. P-1,
complaint in accordance with law and subject
to first respondent obtaining previous approval
under Section 17-A of the Prevention of
Corruption Act."
30. In another judgment passed by this Court in
Writ Petition No.6732/2023 dated 22.05.2023 in the
case of L Sathish Kumar vs. State by ACB, wherein this
court has taken the view that without obtaining sanction or
permission under Section 17A of the P.C. Act, the FIR
cannot be sustainable under the law and has held that the
police have purposely registered the FIR under the un-
amended P.C. Act in order to avoid for obtaining the
permission under Section 17A of the amended P.C. Act.
31. Learned counsel also relied upon the another
judgment of the Co-ordinate bench of this Court in Writ
Petition No.505/2023 (GM-RES) dated 10.03.2023 in
the case of Smt. Noor Zahara Khanum and Others vs.
State by DPAR and the Additional Director General of
Police, where the Court has taken similar view and
quashed the FIR and has held at paragraph No.26 of the
judgment which is as under:
"26. The formation of opinion by the statutory
authority while granting prior permission under
Section 17A should reflect application of mind
with reference to the material available on
record. The provision is akin to the recording
of reasons while granting prior permission
under Section 19 of the Act. The bedrock of
these provisions are to avoid or discourage
malicious and vexatious prosecution. In the
teeth of the afore-narrated facts, the order
granting prior approval, impugned in the writ
petition, would, without a shadow of a doubt
result in a vexatious prosecution against the
petitioners. The order impugned falls foul of
the intent and purport of Section 17A.
Therefore, the order impugned loses its legal
legs to stand as it is ex-facie illegal."
32. The learned Senior counsel, Sri C.H. Jadhav
also relied upon the order of the Co-ordinate bench of this
Court in Writ Petition No.8905/2022 (S-RES) and
connected matter in the case of Smt. Shreeroopa vs.
State by DPAR and Others, where the Co-ordinate
Bench has quashed the FIR on the ground that no prior
approval has been obtained under Section 17A of the P.C.
Act.
33. The learned Senior counsel, Sri C.H. Jadhav
also relied upon another judgment in the case of State of
Rajasthan vs. Tejmal Choudhary reported in
MANU/SC/1365/2021, wherein the Hon'ble Supreme
Court has held that the provisions of Section 17A is having
prospective effect in view of the amended P.C. Act with
effect from July 2018 and held at paragraph No.7 of the
judgment which is as under:
"7. It is a cardinal principle of construction
that every statute is prospective, unless it is
expressly or by necessary implication made to
have retrospective operation. There is a
presumption against retrospectivity. An
express provision should ordinarily be made to
make a statute retrospective. The presumption
against retrospectivity may also be rebutted by
necessary implication as held by this Court in
Akram Ansari vs.Chief Election Officer reported
in (2008) 2 SCC 95, which has been referred to
and relied upon by the Kerala High Court in
this judgment in K.R.Ramesh vs. Central
Bureau of Investigation and Another reported
in 2020 SCC Online Kerala 2529. The device of
a legal fiction can also be used to introduce
retrospective operation. Generally, it is
considered that every statute dealing with
substantive rights is prima facie prospective
unless it is expressly or by necessary
implication made retrospective."
34. On perusal of the judgment of the Hon'ble
Supreme Court in the above said cases, wherein, the
amended P.C. Act, 2018 came into force from 26.07.2018
onwards and the Hon'ble Supreme Court has held that
permission under Section 17A of P.C. Act is necessary for
conducting any enquiry or inquiry or investigation into any
offence done by public servant where the offence alleged is
relatable to any recommendation made or decision taken
by the public servant in discharge of his public functions.
On the other hand, the CBI counsel has relied upon the
order passed by the Co-ordinate Bench in B.S
Yediyurappa's case, wherein the Co-ordinate Bench of
this Court has held that Section 17A approval is required
only if the offence committed by the public servant by
taking any decision during the discharge of any public
duties. Here in this case, the offence committed by the
petitioner is punishable under Section 13(1)(e) of the P.C.
Act for amazing the disproportionate properties more than
known sources of income and it is not the case where
while discharging the public duty, the petitioner has taken
any decision that while discharging the official functions as
public servant, therefore, by considering the judgment of
the Hon'ble Supreme Court in the above said cases, it is
clear, that the offence must be committed for making any
recommendations and taking any decisions by the public
servants while discharging the official duty, then only the
approval of Section 17A of P.C. Act is required. But here in
this case, no such decisions taken by the petitioner or any
offence committed by the petitioner which falls under the
category of taking any decisions or making any
recommendations. Therefore, the contention of petitioner
counsel cannot be acceptable that prior approval of Section
17A of P.C. Act is required in this case for investigating the
matter. It is also pertinent to note that the State
Government while giving sanction or consent under
Section 6 of the DSPE Act, obtained the opinion of the
learned Advocate General, wherein the Advocate General
has opined that under Section 17A of P.C. Act, the
previous approval is not required in this case. Based upon
the said advice, the State Government given consent for
CBI under Section 6 of the DSPE Act for investigating the
matter for registering the FIR. By considering the facts and
circumstances of the case which is registered under
Section 13(1)(e) of P.C. Act, the approval under Section
17A of P.C. Act is not required. Therefore, the contention
of the petitioner counsels cannot be acceptable. Hence, I
answered this point against the petitioner and in favour of
the CBI.
35. Learned Senior counsel for the petitioner also
contended that the CBI purposely registered the FIR under
the un-amended P.C. Act and not registered the case
under the provisions of Section 13(1)(a) and (b) of
amended P.C. Act in order to avoid for obtaining the
approval under Section 17A of the P.C. Act and the learned
counsel has relied upon the order passed by the Co-
ordinate Bench of this Court as well as Hon'ble Supreme
Court judgments referred above. On the other hand,
learned counsel for CBI has contended that the FIR was
registered for the offence committed by the petitioner for
the check period between 01.04.2013 and 30.04.2018
which is prior to the bringing the amendment to the P.C.
Act which is enforced from 26.07.2018 onwards.
Therefore, the respondent counsel contended that the
offence committed by the accused petitioner cannot be
registered under the amended P.C. Act. Therefore, it is
contended there is no requirement of any approval under
Section 17A of the P.C. Act and learned Senior counsel for
the petitioner contended that the FIR registered for non
existing provisions of law, therefore, FIR is not sustainable.
On the other hand, the respondent CBI counsel has
contended that the accused cannot be charge sheeted
under the new Act for the offence committed during the
enforcement of old Act. Hence, prayed for dismissing the
petition.
36. Upon hearing the arguments on both sides, in
this regard, it is worth to mention that the amended P.C.
Act came into force only on 26.07.2018. The FIR has been
registered by the CBI under Section 13(1)(e) read with
Section 13(2) of P.C. Act in October 2020 and admittedly,
the provisions of Section 13(1)(e) read with Section 13(2)
of P.C. Act is removed from the statute. Therefore, the CBI
could have registered the FIR under the amended P.C. Act,
but there is a possibility of arguing the case by the
petitioner that the accused cannot be charged or tried
under the new Act for the offences committed under the
old Act. The amended Act is always in force and take effect
from prospective in nature but not retrospective in nature.
The Hon'ble Supreme Court in Tejmal Chowdary's case
has held at paragraph No.7 as under:
"It is a cardinal principle of construction that
every statute is prospective, unless it is
expressly or by necessary implication made to
have retrospective operation"
37. Therefore, the amended P.C. Act will be in
force only prospective in nature and it is not applicable to
the case for the offence committed prior to the
amendment of the Act. That apart, as per the Article 20 of
the Constitution of India, a protection available to the
accused persons for conviction of the offences. For the
convenience, the Article 20(1) of Constitution of India is
referred as under:
"20. Protection in respect of conviction for
offences -
(1) No person shall be convicted of any offence
except for violation of a law in force at the time
of the commission of the act charged as an
offence, nor be subjected to a penalty greater
than that which might have been inflicted
under the law in force at the time of the
commission of the offence."
38. In view of the provisions of Article 20(1) of
Constitution of India for the offence alleged to have been
committed by the petitioner is between April 2013 and the
end of April 2018, at that time, the un-amended P.C. Act
was in force.
39. As per Section 30(2) of the amended P.C. Act,
in respect of Repeal and Saving will validate the action
taken by the Authorities under the Repealed Act, if it is not
inconsistent with the provisions of present Act. Therefore,
even if any wrong provision mentioned in the FIR, that
itself is not a ground for quashing the FIR when the matter
was almost at the ending stage of the investigation.
Therefore, the contention taken by the learned Senior
counsel for the petitioner for quashing the FIR on this
ground that cannot be acceptable.
40. The learned Senior Counsel for the petitioner
has strenuously contended that the CBI registered the
case against the petitioner under Section 13(1)(e) of the
P.C. Act by including the assets of his wife and children,
which does not come under the purview of the public
servant. The Assets and Liabilities of the wife and children
cannot be considered as assets of the petitioner or a public
servant. Therefore, the Assets and Liabilities of the family
members, if, were removed, there is no disproportionate
asset in the hands of the petitioner. The learned Senior
Counsel would further contend that as per the contentions
of the CBI in the FIR, the declaration of assets by the
petitioner has including the assets of the family members
at the time of election of the year 2013 was
Rs.33,92,62,793/-. They added all the Assets and
Liabilities of the family members, which cannot be included
in the definition of the public servant. He further
contended that even there is no specification or individual
name of the wife and children and their Assets and
Liabilities mentioned in the FIR. It is not the case of the
prosecution that the properties held by the wife and
children are the benami properties of the petitioner.
Therefore, it is contended that once there is no allegation
of benami assets possessed by some other person, it
cannot be included in the assets of the petitioner. He
further contended that the assets of the family members
including the income tallying with petitioner's account for
registration of FIR, is not correct. He further contended
that the ingredients of 13(1)(e) of P.C. Act is not attracted
for registering the FIR against the petitioner. On the
aforesaid ground, the learned Senior Counsel prayed for
quashing the FIR.
41. On the other hand, the learned counsel for
respondent has seriously objected the petition contending
that the FIR registered by the police is based upon a
source report by preliminary enquiry, and they have stated
that the public servant, i.e. the petitioner, is holding the
assets including the assets of the family members, which is
more than the income and assets declared in the year
2013 Assembly Election. On comparing the Assets and
Liabilities declared by the petitioner in 2018 election during
the check period from 01.04.2013 to 30.04.2018, it
amounts to more than Rs.74 Crores excess than the
known source of income. It is also contended that the FIR
cannot contain the details of Assets and Liabilities of each
family members and other persons. The FIR is not an
encyclopedia containing all the minute details and it has to
be considered only after investigating the matter while
filing the final report.
42. The learned Counsel for the petitioner has
strenuously contended that as per Section 13 of the P.C.
Act, it is referring to the assets of public servant and not
included any family member, as an unit. The learned
Senior Counsel has contended that the definition of Section
13(1)(a) of the P.C. Act refers that the public servant
himself or any other person, on his behalf, is in
possession, if it is not satisfactorily explained or accounted
for it, is punishable under Section 13(2) of the P.C. Act.
43. Upon hearing both sides, it is worth to mention
the definition of public servant under Section 2(c)(i) of P.C.
Act, which reads as under:
"2(c)(i) Any person in the service or pay of
the Government or remunerated by the
Government by fees or commission for the
performance of any public duty."
44. Whereas, Section 13(1)(e), defines as under:
"13(1)(e) - A public servant is said to commit
the offence of criminal misconduct, -
if he or any person on his behalf, is in
possession or has, at any time, during the
period of his office, been in possession for
which the public servant cannot be satisfactory
account, of pecuniary resources or property
disproportionate to his known sources of
income."
45. On plain reading of the provisions of Sub-section
(e) of Section 13(1), it includes he, (the public servant)
himself and any person on his behalf. That means, though
the provision does not mention any person means whether
it is the family member or any other person, but it does
not expressly excluded the family members. Any person
may be covered by family members or friends and
relatives also. In this regard, the learned Senior Counsel
for the respondent has relied upon the judgments of the
Hon'ble Supreme Court reported in STATE OF
KARNATAKA Vs. J. JAYALALITHA & OTHERS reported
in (2017) 6 SCC 263, STATE OF CHATTISGARH AND
ANOTHER Vs. AMAN KUMAR SINGH AND OTHERS
reported in (2023) 6 SCC 559 and STATE OF HARYANA
VS. BHAJANLAL reported in 1992 SUPP. (1) SCC 335
and STATE OF M.P. Vs. AWADH KISHORE GUPTA AND
OTHERS reported in 2004(1) SCC 691 and
VEERASWAMI Vs. UNION OF INDIA AND OTHERS
reported in (1991) 3 SCC 655.
46. The Hon'ble Supreme Court in Jayalalitha's case,
supra, held that 'it expanded notion of public servant to
include within its sweep, not only public servants but also
those who abet and conspire with them'. In the said case,
the public servant is not only included the Chief Minister of
the State, but also the other person brought under the
preview of Prevention of Corruption Act and the Hon'ble
Supreme Court convicted the other persons than the public
servant.
47. In the Aman Kumar Singh's case, supra, the
Hon'ble Supreme Court at paragraphs 50, 53 and 55
included the family members along with the public servant
for registering the case under the disproportionate assets
case. Paragraph 50 of the said judgment reads as under:
50. Insofar as the merits of the controversy
are concerned, we must necessarily begin with
a reading of the relevant provisions of the PC
Act. "Public servant" is defined in Section 2(c).
It is not disputed that AS as well as YS is
comprehended within such meaning. Section
13(1) of the PC Act defines "criminal
misconduct". A public servant is said to commit
the offence of criminal misconduct if (a) 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) he
intentionally enriches himself illicitly during the
period of his office. Thus, intentional
enrichment illicitly by a public servant during
the period of his office is a criminal
misconduct. There are two Explanations in
Section 13(1). The First Explanation provides
that 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. The other
Explanation defines "known sources of income"
to mean income received from any lawful
sources. To attract this provision, the officer
sought to be proceeded against must be a
public servant. He must be found to be in
possession of, by himself, or through any
person on his behalf, at any time during the
period of his office, pecuniary resources or
property disproportionate to his known sources
of income. If he is unable to satisfactorily
account for the same, he shall be liable to be
proceeded against for having committed
criminal misconduct and suitably punished and
fined if the charge is proved for such period, as
provided in sub-section (2). Undoubtedly, this
is a presumptive finding but that finding is
based on three facts viz. being a (i) public
servant, (ii) if at any time during the period of
his office, he has been in possession, by
himself or through any person on his behalf, of
pecuniary resources or property
disproportionate to his known sources of
income, then (iii) he is enjoined to
satisfactorily account for the same. The offence
of criminal misconduct is committed by a
public servant if (ii) is proved and (iii) does not
happen. Therefore, if a prosecution is launched
under sub-section (1) of Section 13 of the PC
Act and the allegation is proved at the trial, the
public servant concerned is liable to
punishment under sub-section (2) thereof.
48. The same view was taken by the Hon'ble
Supreme Court in various cases referred above.
Therefore, the contention of the petitioner's counsel that
the meaning of public servant will not include the family
members as one unit, cannot be acceptable. The matter is
still under investigation and the possibility of including or
naming the other persons in the charge sheet by the CBI,
is not ruled out.
49. The learned Senior counsel for the petitioner
also contended that while registering the FIR, there is no
cognizable offence made out and there is no details of
assets and liabilities, income or any benami transaction
made in the FIR. Therefore, taking the entire amount as a
whole of the public servant as one unit, cannot be
acceptable. In this regard, on perusal of the FIR at column
12.4, it is mentioned that on the preliminary enquiry made
against D.K.Shivakumar, Anjaneya, Hanumanthaiah and
Shashikumar, prima facie it revealed that the petitioner
D.K. Shivakumar and his family members are in
possession of assets disproportionate to their known
sources of income during the period and Sri Anjaneya and
Shashikumar aided him for the same. At column 12.5 of
the FIR, it is also referred that the preliminary enquiry was
made by the enquiry officer and as per the report, the
petitioner D.K. Shivakumar and his dependent family
members amazed the assets disproportionate to their
known sources of income. At 12.5.1 of the FIR, the
amount declared by the petitioner in the beginning of the
check period and end of the check period is referred and
the amounts were mentioned and the percentage of
disproportionate assets is also mentioned. As already held
above, the FIR is not an encyclopedia to mention the
minute details in the first information. Therefore, for the
purpose of taking investigation in a cognizable offence, the
basic requirement is only whether there is any
disproportionate assets with the accused than the known
sources of income as per preliminary enquiry made as per
the guidelines issued by the Hon'ble Supreme Court in the
case of LALITA KUMARI Vs. GOVT.OF U.P. reported in
(2014) 2 SCC 1. Therefore, merely the details of assets
and income, expenditures of each and every individual, not
mentioned in FIR, cannot be a ground for quashing the
FIR. The investigation is under progress. As per the
information submitted by the learned counsel for CBI,
more than 80 witnesses have been examined and the
voluminous documents produced by the petitioner have to
be considered by the investigation officer. Then, it will be
helpful for the CBI to file final report by showing the
minute details. Therefore, on this ground, the FIR cannot
be quashed. Even other wise, the name of the petitioner is
mentioned in the FIR and the name of wife, dependent
children or independent children is not named in the FIR,
it is not necessary for naming all the persons in the FIR.
After the detailed investigation, the police can name all the
persons including their Assets and Liabilities and
disproportionate assets.
50. The Hon'ble Supreme Court in the case of
DINESHBHAI CHANDUBHAI PATEL Vs. STATE OF
GUJARATH AND OTHERS reported in (2018)3 SCC 104
has held that the High Court would not appreciate the
evidence or could draw its own inferences from the
contents of the FIR and the material relied on, and the
High Court go into the every minute details by exercising
the power under section 482 of Cr.P.C. In another case in
STATE OF TAMIL NADU Vs. S. MARTIN AND OTHERS
reported in (2018)5 SCC 718, the Hon'ble Supreme Court
has held that when investigation is not yet completed, the
High Court cannot go into verifying the amounts
mentioned in the complaint and quash the FIR and the
Court should allow the investigation to be completed. The
Hon'ble Supreme Court in the case of CENTRAL BUREAU
OF INVESTIGATION (CBI) AND ANOTHER Vs.
THOMMANDRU HANNAH VIJAYALAKSHMI @ T.H.
VIJAYALAKSHMI AND ANOTHER reported in 2021 SCC
online SC 923, at paragraph 44 of the judgment, by
relying upon the earlier its judgment in Niharika
Infrastructure's case at paragraphs 12 and 15, has held as
under:
44. In a more recent decision of a three
Judge Bench of this Court in Neeharika
Infrastructure (supra), Justice M R Shah,
speaking for the Bench consisting also of one
of us (Justice D Y Chandrachud), enunciated
the following principles in relation to the Court
exercising its jurisdiction under Article 226 of
the Constitution or Section 482 of the CrPC:
"80. In view of the above and for the
reasons stated above, our final conclusions on
the principal/core issue, whether the High
Court would be justified in passing an interim
order of stay of investigation and/or "no
coercive steps to be adopted", during the
pendency of the quashing petition under
Section 482 Cr.P.C and/or under Article 226 of
the Constitution of India and in what
circumstances and whether the High Court
would be justified in passing the order of not to
arrest the accused or "no coercive steps to be
adopted" during the investigation or till the
final report/chargesheet is filed under Section
173 Cr.P.C., while dismissing/disposing of/not
entertaining/not quashing the criminal
proceedings/complaint/FIR in exercise of
powers under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India,
our final conclusions are as under:
i) Police has the statutory right and duty under
the relevant provisions of the Code of
Criminal Procedure contained in Chapter XIV
of the Code to investigate into a cognizable
offence;
ii) Courts would not thwart any investigation
into the cognizable offences;
iii) It is only in cases where no cognizable
offence or offence of any kind is disclosed in
the first information report that the Court
will not permit an investigation to go on;
iv) The power of quashing should be exercised
sparingly with circumspection, as it has
been observed, in the 'rarest of rare cases
(not to be confused with the formation in
the context of death penalty).
v) While examining an FIR/complaint, quashing
of which is sought, the court cannot embark
upon an enquiry as to the reliability or
genuineness or otherwise of the allegations
made in the FIR/complaint;
vi) Criminal proceedings ought not to be
scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an
exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from
usurping the jurisdiction of the police, since
the two organs of the State operate in two
specific spheres of activities and one ought
not to tread over the other sphere;
ix) The functions of the judiciary and the police
are complementary, not overlapping;
x) Save in exceptional cases where non-
interference would result in miscarriage of
justice, the Court and the judicial process
should not interfere at the stage of
investigation of offences;
xi) Extraordinary and inherent powers of the
Court do not confer an arbitrary jurisdiction
on the Court to act according to its whims
or caprice;
xii) The first information report is not an
encyclopedia which must disclose all facts
and details relating to the offence reported.
Therefore, when the investigation by the
police is in progress, the court should not go
into the merits of the allegations in the FIR.
Police must be permitted to complete the
investigation. It would be premature to
pronounce the conclusion based on hazy
facts that the complaint/FIR does not
deserve to be investigated or that it
amounts to abuse of process of law. After
investigation, if the investigating officer
finds that there is no substance in the
application made by the complainant, the
investigating officer may file an appropriate
report/summary before the learned
Magistrate which may be considered by the
learned Magistrate in accordance with the
known procedure;
xiii) The power under Section 482 Cr.P.C. is
very wide, but conferment of wide power
requires the court to be more cautious. It
casts an onerous and more diligent duty on
the court;
xiv) However, at the same time, the court, if it
thinks fit, regard being had to the
parameters of quashing and the self-
restraint imposed by law, more particularly
the parameters laid down by this Court in
the cases of R.P. Kapur (supra) and Bhajan
Lal (supra), has the jurisdiction to quash
the FIR/complaint;
xv) When a prayer for quashing the FIR is
made by the alleged accused and the court
when it exercises the power under Section
482 Cr.P.C., only has to consider whether
the allegations in the FIR disclose
commission of a cognizable offence or not.
The court is not required to consider on
merits whether or not the merits of the
allegations make out a cognizable offence
and the court has to permit the
investigating agency/police to investigate
the allegations in the FIR;
xvi) The aforesaid parameters would be
applicable and/or the aforesaid aspects are
required to be considered by the High Court
while passing an interim order in a quashing
petition in exercise of powers under Section
482 Cr.P.C. and/or under Article 226 of the
Constitution of India. However, an interim
order of stay of investigation during the
pendency of the quashing petition can be
passed with circumspection. Such an
interim order should not require to be
passed routinely, casually and/or
mechanically. Normally, when the
investigation is in progress and the facts are
hazy and the entire evidence/material is not
before the High Court, the High Court
should restrain itself from passing the
interim order of not to arrest or "no coercive
steps to be adopted" and the accused
should be relegated to apply for anticipatory
bail under Section 438 Cr.P.C. before the
competent court. The High Court shall not
and as such is not justified in passing the
order of not to arrest and/or "no coercive
steps" either during the investigation or till
the investigation is completed and/or till the
final report/chargesheet is filed under
Section 173 Cr.P.C., while
dismissing/disposing of the quashing
petition under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of
India.
xvii) Even in a case where the High Court is
prima facie of the opinion that an
exceptional case is made out for grant of
interim stay of further investigation, after
considering the broad parameters while
exercising the powers under Section 482
Cr.P.C. and/or under Article 226 of the
Constitution of India referred to
hereinabove, the High Court has to give
brief reasons why such an interim order is
warranted and/or is required to be passed
so that it can demonstrate the application of
mind by the Court and the higher forum can
consider what was weighed with the High
Court while passing such an interim order.
xviii) Whenever an interim order is passed by
the High Court of "no coercive steps to be
adopted" within the aforesaid parameters,
the High Court must clarify what does it
mean by "no coercive steps to be adopted"
as the term "no coercive steps to be
adopted" can be said to be too vague
and/or broad which can be misunderstood
and/or misapplied."
51. At paragraph 51 of the said judgment, the
Hon'ble Supreme Court has also has held that the High
Court cannot sit as a chartered accountant while
considering the offence punishable under Section 13(1)(e)
of the PC Act while calculating the Assets and Liabilities
declared by the petitioner in both elections at this stage
and set aside the order passed by the Telangana High
Court for having quashed the FIR. Therefore, the
contention of the learned Senior Counsel for the petitioner
that there is no details of Assets and Liabilities of the
family members and the FIR can be quashed, cannot be
acceptable.
52. The learned Senior Counsel has also seriously
contended that while registering the FIR at column 12.5.1,
it is mentioned that the assets declared by the petitioner
was Rs.33,92,62,793/- and during the end of the check
period, it crossed Rs.163,53,44,494/- and the income was
Rs.166,79,58,216/-, which is wrong. Whereas, the
petitioner has declared his Assets and Liabilities before the
Returning Officer, Election Commission of India, which is
altogether different figure. The petitioner's counsel has
also produced the copy of the affidavit filed along with
nomination form No.26 during filing of the nomination in
the year April 2013, which reveals that the petitioner filed
form No.26 declaring the accounts, both movable and
immovable properties, stand in his name, his wife,
dependent children in detail mentioning at different pages
from Annexures 'A' to 'O'. Various details of properties,
business, income liabilities, gold, silver, cash, etc. have
also been mentioned. The learned counsel for the
petitioner has also prepared a note mentioning the Assets
and Liabilities during the election affidavit filed on
15.04.2013 as Rs.18,45,30,706/- and he has also shown
Rs.48,58,21,940/- as on 23.04.2018, while filing the
nomination during election 2018. But the learned Senior
Counsel has not mentioned as to what was the income and
the other details in the calculation memo. It contains only
assets i.e., movable and immovable and liabilities.
Therefore, these amounts cannot be taken into
consideration to show that the amount mentioned by the
CBI in the FIR at Rs.33,96,62,783/- is not correct. The
details of the Assets and Liabilities were said to be
produced by the petitioner by documents to the
investigation officer and the investigation is under
progress. Therefore, the contention of the learned Senior
Counsel that the amount declared by the petitioner in the
year 2013 election is incorrect, cannot be acceptable at
this stage, without filing the final report by the
investigation officer. It is well settled by the Hon'ble
Supreme Court that this Court cannot conduct a mini trial
while considering the petition under Section 482 of Cr.P.C.
for the purpose of quashing the criminal proceedings.
Apart from that, this Court cannot sit as an chartered
accountant/auditor in calculating the amounts declared by
the petitioner in the previous nomination paper filed in the
year 2013 and the subsequent nomination paper filed in
the year 2018. It is possible to verify only after the final
report filed by the police. In the case of Awadh Kishore
Gupta's case, supra, at paragraph 13 of the said judgment,
the Hon'ble Supreme Court has held as under:
13. It is to be noted that the investigation was
not complete and at that stage it was
impermissible for the High Court to look into
materials, the acceptability of which is
essentially a matter for trial. While exercising
jurisdiction under Section 482 of the Code, it is
not permissible for the Court to act as if it was
a trial Judge. Even when charge is framed at
that stage, the Court has to only prima facie be
satisfied about existence of sufficient ground
for proceeding against the accused. For that
limited purpose, the Court can evaluate
material and documents on records but it
cannot appreciate evidence. The Court is not
required to appreciate evidence to conclude
whether the materials produced are sufficient
or not for convicting the accused. In Chand
Dhawan v. Jawahar Lal [(1992) 3 SCC 317 :
1992 SCC (Cri) 636] it was observed that when
the materials relied upon by a party are
required to be proved, no inference can be
drawn on the basis of those materials to
conclude the complaint to be unacceptable.
The Court should not act on annexures to the
petitions under Section 482 of the Code, which
cannot be termed as evidence without being
tested and proved. When the factual position
of the case at hand is considered in the light of
principles of law highlighted, the inevitable
conclusion is that the High Court was not
justified in quashing the investigation and
proceedings in the connected case (Crime No.
116 of 1994) registered by the Special Police
Establishment, Lokayukta, Gwalior. We set
aside the impugned judgment. The State shall
be at liberty to proceed in the matter further.
53. Therefore, in view of the judgment of Hon'ble
Supreme Court in Thommandru's case and Awadh
Kishore Gupta's case, cited supra, the FIR cannot be
quashed on the ground that there were no details in the
FIR regarding the Assets and Liabilities of the family
members and any other persons. Hence, on this ground
urged by the learned Senior Counsel, the FIR cannot be
quashed in this case.
54. Learned counsel for the CBI also produced some
details of the Assets and Liabilities said to be declared by
the petitioner and some of the properties were not
declared in the affidavit regarding holding properties
related to global mall for Rs.7.80 crores other assets at
Kanakapura town, Benny stone garden , construction of
the house at Sadashivanagara and contended that
property in possession of wife of the petitioner regarding
immovable assets worth Rs.17,33,85,643/- and movable
Rs.2,77,04,752/- and on end of the check period it was
Rs.43,12,79,497/- and 10 movable assets of Rs.3.2 crores.
The dependent children are having immovable Rs.61,75
crores movable 25.90 crores in the beginning of the check
period and at the end it was Rs.75.01 crores and Rs.3.17
crores etc., but I have stated above this court cannot
verify the Assets and Liabilities declared prior the check
period and after the check period while considering the
quashing the FIR. That has to be considered only after
filing the final report by the Investigating Officer and this
court cannot sit as chartered account or auditor in
appreciating the evidence regarding the values and
documents at this stage of investigation. Therefore, on
this ground, the FIR cannot be quashed.
55. The learned Senior Counsel for the petitioner
also contended the FIR has been registered in October,
2020 but till February 2023, the CBI not completed the
investigation and investigation is still pending until this
court stayed the further investigation. Therefore it is
contended, there was delay in conducting investigation for
more than 2.5 years hence FIR shall be quashed. On the
other hand the respondent counsel has contended the
petitioner produced voluminous documents during the
investigation and those documents were still under
consideration and there is no delay in investigating the
matter on the part of the respondent. The crores of
properties are held by the petitioner, including both
immovable and movables and maximum investigation has
been completed, more than 84 witnesses have been
examined. Therefore, the CBI is likely to file charge sheet
within short period, therefore, on that ground the FIR
cannot be quashed, hence prayed for dismissing the
petition.
56. On perusal of the synopsis produced by the
learned counsel for the respondent/CBI, which reveals,
while registering the FIR there was Covid-19 lockdown and
the investigation were stopped by the Investigating Officer
and subsequently the investigation has taken place, there
were 70 immovable properties and 30 movable assets in
addition to 47 instances of income and 125 instances of
expenditure and there were several suspicious cash
transactions has been traced. The petitioner has
submitted explanation in the form of 1 to 6 statements
containing 11 volumes of around 2412 pages and total 596
documents collected and 84 witnesses have been
examined by the CBI. Due to non availability of the
documents, the Investigating Officer was unable to
complete the investigation and file the charge sheet. On
considering the above submission made by the learned
counsel for the respondent, the Hon'ble Supreme Court
has held in the case of Londhe Prakash Bhagwan Vs
Dattatreya Eknath Mane reported in (2013) 10 SCC
627 wherein at para 9, of the judgment the Hon'ble
Supreme Court has held, there is no time limit prescribed
in the statute regarding limitation and aggrieved person
shall approach the court within a reasonable time.
Learned counsel for the respondent also contended, that
the FIR has been registered in October 2020, but upto
2022 the petitioner has not approached the court for
quashing the FIR and he has approached the court almost
nearly end of the investigation and most of the
investigation has been completed, therefore FIR cannot be
quashed. In the above said case Hon'ble Supreme Court
has held, even though there is no limitation but the parties
shall approach the court within reasonable time.
57. The Delhi High Court in Vipin Kumar Gupta Vs
Sarvesh Mahajan's case, also taken view that the party
shall approach the court within reasonable time.
Therefore, once the maximum investigation has been
completed and the petitioner himself offered explanation
by producing voluminous documents, now the petitioner
cannot take a shelter on the ground of delay in
investigating the matter. Hence contention of the learned
counsel for petitioner that the FIR should be quashed on
the ground of delay cannot be acceptable.
58. It is also pertinent to note, on the direction
issued by this court, the Investigating Officer has produced
the investigation status of the case, along with the case
dairy and preliminary enquiry reports. On verifying all
these documents, the prosecution almost examined
maximum witnesses and collected voluminous documents
and evidences from various sources. Since the
investigation is under progress, and FIR has been
challenged, the court cannot mention every details
produced by the Investigating Officer under the sealed
cover, it cannot disclose in the Order and the petitioner
also cannot be made known to these documents until final
report is filed, where the petitioner is entitled for the copy
of the final report.
59. The status report of the investigation also
reveals the documents produced by the petitioner has
been under scrutiny, there was huge cash transactions
which took place and some other suspicious transaction
were held by the petitioner. There were 98 bank accounts
pertaining to the petitioner and his family has been under
scrutiny. The CBI has taken assistance of chartered
accountant to analyze the transactions. On perusal of
these documents, which reveals the investigation is almost
in final stage and in view of the production of voluminous
documents by the petitioner the Investigating Officer is
unable to conclude the investigation within a short period.
Therefore, the contention of the learned counsel for the
petitioner that there was delay in concluding the
investigation cannot be acceptable and on that ground the
FIR cannot be quashed.
60. Another contention raised by the learned
counsel for petitioner, mainly on the ground and important
ground urged by the petitioner is that the FIR registered
against the petitioner with malafide and political malice.
The learned senior counsel for the petitioner has seriously
contended that petitioner is sitting MLA and former
Minister at the time of registering the FIR and he was
actively participated in the National Congress Party and is
popular political figure in Karnataka, therefore as a
vengeance the Central Government having control over the
Income Tax, ED and CBI has targeted the petitioner by
registering false cases against him, therefore, the FIR
requires to be quashed. On the other hand, the
respondent counsel seriously objected the same and
contended the petitioner is involved in amassing the assets
during the check period which is more than known source
of income and there is no malafide and political malice in
registering the FIR and contended that the Hon'ble
Supreme Court has held in the case of State of
Chathishgarh Vs Aman Kumar Sing case and Monica
Kumar Sing Vs State of Uttar Pradesh and
Bhajanlal's case and prayed for dismissing the petition.
61. Based upon the rival contention and perusal of
the records, which is an admitted fact, that the petitioner
is sitting MLA of Karnataka Assembly and he was former
Minister during the check period 2013-2018 Assembly and
presently he is holding post of Deputy Chief Minister of
Karnataka. It is also an admitted fact, the Income Tax
conducted raid in the house of the petitioner and others on
various places, they collected documents and seized more
then Rs.8 crores of amount, and also Rs.41 lakh in the
house. the Income tax authorities after issuance of notice
they have filed 4 complaints before the special court under
section 276 (c) (1) of Income Tax Act and Section 201 and
204 of IPC, out of which in some of the cases the
Magistrate quashed the criminal proceedings and now the
cases are pending before the Hon'ble Supreme Court and
in one case, the discharge application came to be
dismissed, revision also dismissed and the SLP is pending
before the Hon'ble Supreme Court. It is also revealed from
the documents based upon the Income Tax Report the
Enforcement Directorate registered FIR in ECIR
No.4/HIU/2018 for the offence punishable under Section 3
and 4 of Prevention of Money Laundering Act, where the
petitioner has been arrested. He was in custody for some
time, then released on bail and the proceeding is still
under process.
62. It is also revealed from the documents that
based upon the report, sent by the Directorate of
Enforcement under Section 66(2) of PMLA Act, to the State
Government where prosecution against the petitioner
under the PC Act, on the ground, during the investigation
of the Income Tax Authorities, it was found the petitioner
was involved in money laundering activities and a case was
registered under the PMLA Act. During the investigation
by the Enforcement Directorate, it was found the petitioner
has amassed assets disproportionate to the known source
of income, hence letter has been sent to the Chief
Secretary, Government of Karnataka. Accordingly, the
State Government accorded consent for prosecuting
against this petitioner on 25.9.2019 for the offences
punishable under Section 13(1)(3) and 13(2) of the PC act
in RC No.10A/2020 on 3.10.2020. During the intervening
period of granting permission for registering FIR and till
registering FIR for almost one year there was preliminary
enquiry made by the CBI and collected the materials.
Thereafter, FIR came to be registered which is under
challenge.
63. The Hon'ble Supreme Court has held, in Aman
Kumar Sing and others case reported in 2023 SCC
Online SC 198 at paragraph 71,72,73 and 74 as under:-
" 71. We have perused the writ petitions filed
by AS and YS and have no hesitation to agree
with Mr.Hegde that the pleadings are
insufficient to return a finding that the FIR is
an outcome of mala fide. No doubt, certain
allegations are levelled against the
Government and the Chief Minister; however,
such allegations are vague and general in
nature. Mala fide motives are required to be
affirmatively pleaded and proved. However, no
foundation in that behalf has been laid and
naturally so, the High Court even did not
examine whether exception could have been
taken to the FIR on the ground of mala fide.
72. Secondly, neither the head of the political
executive (the incumbent Chief Minister) nor
that of the administrative executive (the Chief
Secretary) was personally arrayed as a party
to any of the proceedings. Now, law is well
settled that the person against whom mala fide
or bias is imputed should be impleaded as a
party respondent to the proceedings eo
nominee and that in his/her absence no inquiry
into the allegations can be made. This is what
the decision in State of Bihar v. P.P.
Sharma [State of Bihar v. P.P. Sharma, 1992
Supp (1) SCC 222 : 1992 SCC (Cri) 192] lays
down. Having regard thereto, since the
incumbent holding the office of Chief Minister
of the State against whom mala fide is alleged
is not on record, we are loath to attach any
importance to the allegations of mala fide even
if there be any.
73. Thirdly, it must be remembered that when
an information is lodged at the police station
and an offence is registered in respect of a
disproportionate assets case, it is the material
collected during the investigation and evidence
led in court that is decisive for determining the
fate of the accused. To our mind, whether the
first information report is the outcome of mala
fides would be of secondary importance. In
such a case, should the allegations of mala
fides be of some prima facie worth, would pale
into insignificance if sufficient materials are
gathered for sending the accused up for a trial;
hence, the plea of mala fide may not per se
form the basis for quashing the first
information report/complaint.
74. Finally, following the above, what is of
substantial importance is that if criminal
prosecution is based upon adequate evidence
and the same is otherwise justifiable, it does
not become vitiated on account of significant
political overtones and mala fide motives.
xxxxxxxxxNeedless to observe, the first
information report in a disproportionate assets
case must, as of necessity, prima facie, contain
ingredients for the perception that there is fair
enough reason to suspect commission of a
cognizable offence relating to "criminal
misconduct" punishable under the PC Act and
to embark upon an investigation.
xxxxxxxxxxxWe quite appreciate that there
could be cases of innocent public servants
being entangled in investigations arising out of
motivated complaints and the consequent
mental agony, emotional pain and social
stigma that they would have to encounter in
the process, but this small price has to be paid
if there is to be a society governed by the rule
of law. While we do not intend to fetter the
high courts from intervening in appropriate
cases, it is only just and proper to remind the
courts to be careful, circumspect and cautious
in quashing first information reports resting on
mala fide of the nature alleged herein
64. In view of the latest judgment of the Hon'ble
Supreme Court, the contention of the learned senior
counsel for petitioner is that the FIR has been registered
with malafide and political malice cannot be acceptable for
the reason that there is various documents and evidence
collected by the 3 prosecuting agencies, Income tax
Authorities, ED and CBI. At this stage, it cannot be said,
the FIR cannot be considered as malafide or political
malice, Therefore, on that ground, the contention of the
petitioner cannot be acceptable for quashing the FIR.
65. Another contention raised by the learned senior
counsel for the petitioner that the preliminary enquiry
made by the CBI and there is a violation of guidelines and
delay in conducing enquiry, the FIR shall be quashed.
66. In this regard, learned counsel for respondent
has contended, the CBI manual is only a guidelines for the
Investigating Officer that is not a statute, it is only for
assisting the Investigating Officer for investigating the
matter or conducting preliminary enquiry. Therefore, that
cannot be a ground for quashing the FIR. In support of his
case, relied upon the judgment of CBI Vs Thommandru
Hanna Vijayalakshmi's case (stated supra), at para 17,
18, 20, 22 held as under:- "
17. The most authoritative pronouncement
of law emerges from the decision of a
Constitution Bench in Lalita Kumari (supra).
The issue before the Court was whether "a
police officer is bound to register a first
information report (FIR) upon receiving any
information relating to commission of a
cognizable offence under Section 154 of the
Code of Criminal Procedure 1973...or the police
officer has the power to conduct a 'preliminary
inquiry' in order to test the veracity of such
information before registering the same".
Answering this question on behalf of the
Bench, Chief Justice P Sathasivam held that
under Section 154 of the Code of Criminal
Procedure 197355, a police officer need not
conduct a preliminary enquiry and must
register an FIR when the information received
discloses the commission of a cognizable
offence. Specifically with reference to the
provisions of the CBI Manual, the decision
noted:
"89. Besides, the learned Senior
Counsel relied on the special procedures
prescribed under the CBI Manual to be
read into Section 154. It is true that the
concept of "preliminary inquiry" is
contained in Chapter IX of the Crime
Manual of CBI. However, this Crime
Manual is not a statute and has not been
enacted by the legislature. It is a set of
administrative orders issued for internal
guidance of the CBI officers. It cannot
supersede the Code. Moreover, in the
absence of any indication to the contrary
in the Code itself, the provisions of the
CBI Crime Manual cannot be relied upon
to import the concept of holding of
preliminary inquiry in the scheme of the
Code of Criminal Procedure. At this
juncture, it is also pertinent to submit
that CBI is constituted under a special
Act namely, the Delhi Special Police
Establishment Act, 1946 and it derives
its power to investigate from this Act."
18. However, the Court was also
cognizant of the possible misuse of the powers
under criminal law resulting in the registration
of frivolous FIRs. Hence, it formulated
"exceptions" to the general rule that an FIR
must be registered immediately upon the
receipt of information disclosing the
commission of a cognizable offence. The
Constitution Bench held:
"115. Although, we, in unequivocal
terms, hold that Section 154 of the Code
postulates the mandatory registration of
FIRs on receipt of all cognizable offences,
yet, there may be instances where
preliminary inquiry may be required
owing to the change in genesis and
novelty of crimes with the passage of
time...
[...]
117. In the context of offences
relating to corruption, this Court in P.
Sirajuddin [P. Sirajuddin v. State of
Madras, (1970) 1 SCC 595 : 1970 SCC
(Cri) 240] expressed the need for a
preliminary inquiry before proceeding
against public servants.
[...]
119. Therefore, in view of various
counterclaims regarding registration or
non-registration, what is necessary is
only that the information given to the
police must disclose the commission of a
cognizable offence. In such a situation,
registration of an FIR is mandatory.
However, if no cognizable offence is
made out in the information given, then
the FIR need not be registered
immediately and perhaps the police can
conduct a sort of preliminary verification
or inquiry for the limited purpose of
ascertaining as to whether a cognizable
offence has been committed. But, if the
information given clearly mentions the
commission of a cognizable offence,
there is no other option but to register
an FIR forthwith. Other considerations
are not relevant at the stage of
registration of FIR, such as, whether the
information is falsely given, whether the
information is genuine, whether the
information is credible, etc. These are
the issues that have to be verified during
the investigation of the FIR. At the stage
of registration of FIR, what is to be seen
is merely whether the information given
ex facie discloses the commission of a
cognizable offence. If, after investigation,
the information given is found to be
false, there is always an option to
prosecute the complainant for filing a
false FIR."
20. The Constitution Bench thus held that
a Preliminary Enquiry is not mandatory
when the information received discloses the
commission of a cognizable offence. Even
when it is conducted, the scope of a
Preliminary Enquiry is not to ascertain the
veracity of the information, but only
whether it reveals the commission of a
cognizable offence. The need for a
Preliminary Enquiry will depend on the facts
and circumstances of each case. As an
illustration, "corruption cases" fall in that
category of cases where a Preliminary
Enquiry "may be made". The use of the
expression "may be made" goes to
emphasize that holding a preliminary
enquiry is not mandatory. Dwelling on the
CBI Manual, the Constitution Bench held
that : (i) it is not a statute enacted by the
legislature; and (ii) it is a compendium of
administrative orders for the internal
guidance of the CBI.
22. The decision of a two Judge Bench
in Managipet (supra) thereafter has noted that
while the decision in Lalita Kumari (supra) held
thats a Preliminary Enquiry was desirable in
cases of alleged corruption, that does not vest
a right in the accused to demand a Preliminary
Enquiry. Whether a Preliminary Enquiry is
required or not will depends on the facts and
circumstances of each case, and it cannot be
said to be mandatory requirement without
which a case cannot be registered against the
accused in corruption cases. Justice Hemant
Gupta held thus:
"28. In Lalita Kumari [Lalita
Kumari v. State of U.P., (2014) 2 SCC
1 : (2014) 1 SCC (Cri) 524], the Court
has laid down the cases in which a
preliminary inquiry is warranted, more
so, to avoid an abuse of the process of
law rather than vesting any right in
favour of an accused. Herein, the
argument made was that if a police
officer is doubtful about the veracity of
an accusation, he has to conduct a
preliminary inquiry and that in certain
appropriate cases, it would be proper for
such officer, on the receipt of a
complaint of a cognizable offence, to
satisfy himself that prima facie, the
allegations levelled against the accused
in the complaint are credible...
29. The Court concluded that the
registration of an FIR is mandatory under
Section 154 of the Code if the
information discloses commission of a
cognizable offence and no preliminary
inquiry is permissible in such a
situation...
30. It must be pointed out that this
Court has not held that a preliminary
inquiry is a must in all cases. A
preliminary enquiry may be conducted
pertaining to matrimonial disputes/family
disputes, commercial offences, medical
negligence cases, corruption cases, etc.
The judgment of this Court in Lalita
Kumari [Lalita Kumari v. State of
U.P., (2014) 2 SCC 1 : (2014) 1 SCC
(Cri) 524] does not state that
proceedings cannot be initiated against
an accused without conducting a
preliminary inquiry.
[...]
32...The scope and ambit of a
preliminary inquiry being necessary
before lodging an FIR would depend
upon the facts of each case. There is no
set format or manner in which a
preliminary inquiry is to be conducted.
The objective of the same is only to
ensure that a criminal investigation
process is not initiated on a frivolous and
untenable complaint. That is the test laid
down in Lalita Kumari [Lalita
Kumari v. State of U.P., (2014) 2 SCC
1 : (2014) 1 SCC (Cri) 524].
33. In the present case, the FIR itself
shows that the information collected is in
respect of disproportionate assets of the
accused officer. The purpose of a
preliminary inquiry is to screen wholly
frivolous and motivated complaints, in
furtherance of acting fairly and
objectively. Herein, relevant information
was available with the informant in
respect of prima facie allegations
disclosing a cognizable offence.
Therefore, once the officer recording the
FIR is satisfied with such disclosure, he
can proceed against the accused even
without conducting any inquiry or by any
other manner on the basis of the credible
information received by him. It cannot be
said that the FIR is liable to be quashed
for the reason that the preliminary
inquiry was not conducted. The same can
only be done if upon a reading of the
entirety of an FIR, no offence is
disclosed. Reference in this regard, is
made to a judgment of this Court
in State of Haryana v. Bhajan Lal [State
of Haryana v. Bhajan Lal, 1992 Supp (1)
SCC 335 : 1992 SCC (Cri) 426] wherein,
this Court held inter alia that where the
allegations made in the FIR or the
complaint, even if they are taken at their
face value and accepted in their entirety,
do not prima facie constitute any offence
or make out a case against the accused
and also where a criminal proceeding is
manifestly attended with mala fides
and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking 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."
67. In view of the principle laid by the Hon'ble
Supreme Court in the case supra, the contention raised by
the learned counsel for petitioner that the preliminary
enquiry contained in the CBI manual, not followed by the
CBI, cannot be acceptable. It is categorically held by
Hon'ble Supreme Court at paragraph 20 that the CBI
manual is not a statute enacted by the legislature it is only
compendium of administrative orders for the internal
guidance of the CBI. Therefore, the contention of the
learned counsel for the petitioner cannot be acceptable.
68. Another contention raised by the learned
counsel is that there is no source report for registering the
FIR. Therefore, the amount arrived by the Investigating
Officer for registering the case under the P.C. Act is not
sustainable etc., On the other hand the respondent
counsel has contended the FIR has been registered not
only on the preliminary enquiry made by the CBI officer
but also the records, collected by the Income tax
authorities while in raid. The Enforcement Directorate
collected documents during the investigation in their cases
has been shared with the CBI for registering the FIR. On
perusal of the case diary produced by the CBI which
reveals the preliminary enquiry has been conducted by the
CBI officer and submitted the report. It is also pertinent to
note, this is not the case where the CBI directly registered
the FIR based upon the source report but the FIR has been
registered on the report sent by the Enforcement
Directorate to the State Government for prosecuting
against the petitioner based upon the income tax raid and
income tax proceedings. Therefore, the FIR has been
registered based upon the documents collected by the
Income Tax, Enforcement Directorate and the CBI, under
preliminary enquiry. Therefore, at this stage of
investigation the court cannot jump into any conclusion
that the investigation taken up on the preliminary enquiry
cannot be said to be incorrect.
69. Upon going through the provisions of Sub-
Section(e) to Section 13(1) of P.C. Act, where the public
servant, by himself or any person on his behalf, he is in
possession are as any time during the period of his office,
being in possession for which the public servant cannot
satisfactorily account, of pecuniary sources for property
disproportionate to his known source of income, then it is
punishable under Section 13(2) of the P.C. Act. The
petitioner after registering the FIR on the show cause
notice issued by the Investigating Officer, he has
submitted voluminous documents along with the affidavits
for explaining the assets in his possession and also by his
family members. The explanation offered by the petitioner
is required to be considered by the Investigating Officer
during the investigation. Therefore, the documents
produced by the petitioner including the property title
deeds , list of movables, affidavits, income tax returns, or
any documents that has to be considered only by the
Investigating Officer during the investigation and this
Court cannot sit and verify to find out whether the
explanation given by him satisfactorily or not while
exercising power under Section 482 of Cr.P.C. otherwise it
will become conducting a mini trial and appreciation of
documents before filing the challan. Once challan is filed
then the Trial Court also have a chance to look into the
veracity of the allegation made in the charge sheet
regarding calculations of assets, liabilities, income and
expenditures before framing of charge by exercising the
power under Sections 239/227 of Cr.P.C. and even this
Court also verify the allegation made in the charge sheet
while considering under Articles 226 and 227 of
Constitution of India read with Section 482 of Cr.P.C. That
verification of the documents and appreciation of
documents cannot be exercised while dealing with the
criminal case under Section 482 of Cr.P.C.
70. Though learned counsel for the petitioner relied
upon various judgments of Hon'ble Supreme Court the
learned counsel for respondent also relied upon various
judgment of Hon'ble Supreme Court. in support of their
arguments .but as stated above the scope under Section
482 of Cr.P.C. for quashing the FIR is very limited and the
Court cannot go into the merits of the case, by
appreciating the evidence on record, statement of the
witnesses and the amounts calculated by the Investigating
Officer, regarding Assets and Liabilities. In order to come
to the conclusion, there is no case made out against the
accused. On the other hand, it amounts to conducting
mini trial and to work as a chartered accountant, in order
to auditing the amounts or figures mentioned by the
Investigating Officer and the petitioner. The scope of
section 482 Cr.P.C., is there must be no prima facie
material for taking cognizance and proceed with the
investigation and it should be fallen under the categories of
rarest of the rare case. But here in this case, the
investigation officer examined so many witnesses,
collected voluminous documents, more than 84 witnesses
and almost ending stage of investigation the FIR cannot be
quashed at this stage.
71. Though the learned Senior counsels for the
petitioner were contended that there cannot be two
parallel proceedings for the same set of offence, both
under PML Act registered by the ED and CBI for the P.C.
Act, but, it is well settled by the Hon'ble Supreme Court
that the proceedings before the ED is altogether different
from the offences alleged to have been committed under
the P.C. Act, whereas the ED proceedings for Money
Laundering case and proceeding initiated by the Income
Tax Authorities are pertaining to the tax evasions.
Therefore, it cannot be said for the same offence, parallel
proceedings initiated by three different agencies and
hence, the contention of the petitioner counsels cannot be
acceptable.
72. Therefore, by considering all the above said
findings, the final conclusions are:
(i) There is an inordinate delay and latches
on the part of the petitioner in
approaching the Court for quashing the
FIR, since most of the investigation has
been concluded by the CBI and the
petitioner himself offered his
explanations by producing voluminous
documents to the Investigating Officer
which is under verification of the
Investigating Officer;
(ii) During the investigation stage, the Court
cannot appreciate the documents or
evidences or materials without
conclusion of the investigation and prior
to submitting the final report which
amounts to conducting a mini trial for
quashing the FIR;
(iii) If any delay in investigation on the part
of the CBI, a direction can be issued for
concluding the investigation by fixing the
time limit;
(iv) The Investigating Officer can be
considered the documents and
explanations offered by the petitioner, he
may accept the same and he may also
file 'B' Final report after the investigation
or else the Investigating Officer can file
the charge sheet under Section 173(2) of
Cr.P.C;
(v) If the charge sheet is filed and if the
petitioner aggrieved with the opinion of
Investigating Officer, he is at liberty to
approach the Court either under Sections
227/239 or 482 of Cr.P.C. for discharge
or quashing the charge sheet;
For the above said reasons, I proceed to pass the
following order:
Writ petition filed by the petitioner under
Articles 226 and 227 of Constitution of India
read with Section 482 of Cr.P.C. is hereby
dismissed.
The CBI is hereby directed to complete
the investigation and file the final report within
three months from Pthe date of receipt of the
copy of this order.
Interim stay granted by this Court is
hereby vacated. Pending I.As., if any, is hereby
dismissed as it does not survive for
consideration.
Sd/-
JUDGE
AKV/GBB/CS
