The Supreme Court on 24th March, 2021 comprising of a bench of Justices DY Chandrachud and MR Shah observed that the statements made during the discreet/open enquiry at Pre-FIR stage cannot be said to be a statement under Section 160 CrPC and/or the statement to be recorded during the course of investigation as per the Code of Criminal Procedure and therefore cannot be used against the accused during the course of trial. (Charansingh Vs. State of Maharashtra )
The bench observed “Such a statement cannot be said to be confessional in character, and as and when and/or if such a statement is considered to be confessional, in that case only, it can be said to be a statement which is self-incriminatory, which can be said to be impermissible in law.”
The bench added that Statement and the information so received during the course of discrete enquiry shall be only for the purpose to satisfy and find out whether an offence is disclosed.
Facts Of The Case
In this case, the High Court dismissed the appellant's challenge to a notice issued by the Police Inspector, Anti Corruption Bureau, Nagpur, in which the appellant was asked to provide a statement about the properties he owned in order to investigate a complaint against him alleging accumulating assets disproportionate to his known sources of income.
Issue before the Court
whether such an enquiry at the pre-FIR stage would be legal and to what extent such an enquiry is permissible?
Contention of the Parties
The appeal argued that the notice was given in the alleged exercise of authority under Section 160 Cr.P.C., but that since the appellant cannot be considered a witness in the case, Section 160 Cr.P.C. is inapplicable.
On the other hand, the state claimed that the notice was given to explain his properties and known sources of income, allowing the investigating officer to determine whether or not a cognizable offence had been committed. It was claimed that Section 160 Cr.P.C. was listed inadvertently in the notice.
Courts Observation & Judgment
In appeal, the bench considering the issue Referred to the case of Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1., the bench observed that an enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income.
The court said, "After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged. However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made.".
The bench referring to the impugned notice observed that the information sought therein has a direct connection with the allegations made i.e. accumulating assets disproportionate to his known sources of income. It said:
The same cannot be said to be a fishing or roving enquiry. Such a statement cannot be said to be a statement under Section 160 and/or the statement to be recorded during the course of investigation as per the Code of Criminal Procedure. Such a statement even cannot be used against the appellant during the course of trial. Statement of the appellant and the information so received during the course of discrete enquiry shall be only for the purpose to satisfy and find out whether an offence under Section 13(1)(e) of the PC Act, 1988 is disclosed. Such a statement cannot be said to be confessional in character, and as and when and/or if such a statement is considered to be confessional, in that case only, it can be said to be a statement which is self-incriminatory, which can be said to be impermissible in law.
The bench while dismissing the appeal clarified that statements made by the appellant during open enquiry shall not be treated as a confessional statement.
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