CRUX: Charan Singh vs. State of Maharashtra and Ors - The Supreme court on prevention of corruption act states that an enquiry at pre-FIR stage is desirable.
DATE OF JUDGEMENT: 24th March 2021
JUDGES: Justices DY Chandrachud and MR Shah
PARTIES: Appellant - Charan Singh;
Respondents - State of Maharashtra and others
COUNSEL: Sr. Adv Subodh Dharmadhikari, Sr. Adv Raja Thakare
SUMMARY: In cases related to corruption complaints against public servants, preliminary enquiry at pre-FIR stage is not only permissible but also desirable.
ISSUE: The question before the honorable Supreme Court was whether an enquiry at pre-FIR stage would be legal and to what degree such an enquiry is permissible?
IMPORTANT PROVISIONS
- Section 13(1)(e) of the Prevention of Corruption Act, 1988 - 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 satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
- Section 160 of Code of Criminal Procedure - Police officer' s power to require attendance of witnesses.
- Section 154 of Code of Criminal Procedure - Information in cognizable cases.
- Article 20(3) of the constitution of India
- Article 21 of the constitution of India
- Condition 16 of state anti-corruption manual.
OVERVIEW
- The petitioner was aggrieved and dissatisfied by the judgement and order passed on 20th November 2020 by the Maharashtra High court. The court rejected that petition and ordered the petition to be present before the Anti-corruption bureau of Nagpur to give a statement in an open enquiry in respect of property owned by him along with other information.
- A complaint was made against the petitioner in the Director General's office in the Anti-corruption bureau in Maharashtra on 7/02/2018 and various allegations were made against him and his brother. It appears that at that time the appellant was a member and President of Municipal Council, Katol, District Nagpur. As a consequence of the complainant, the police asked the petitioner to submit some concerned documents and statements.
- Feeling aggrieved by the notice, the petitioner filed a writ petition before the high court. The petitioner argued that the police inspector had no power to issue such notice. And section 160 of CrPC would not be applicable to this case. It was also submitted that there is no FIR against the appellant.
- On the other hand the state contended that the petitioner was only called to give his statement in an open enquiry which was of preliminary nature. Also contended that the high court permitted search enquiry in the case of Lalita Kumari vs Government of UP1 and major emphasis was placed upon a paragraph 89 and 120 of the judgement.
- The High court ruled the favor of the state in Europe that such preliminary enquiry was valid. The High Court has further observed that it is true that by such notice a person like the appellant cannot be compelled to make his personal appearance before the officer of the Anti-Corruption Bureau. The high court also laid emphasis on condition 16 of state anti-corruption manual.
- It was further submitted that the petitioner also contended that he cannot be the witness in this case hence the conditions of section 160 CrPC would not fulfill. It was further contended that the high court materially erred while relying on the Lalita Kumari case. It was also stated that the points mentioned in the said notice shall be hit by Article 20(3) and 21 of the Constitution of India. It was also mentioned by the petitioner that this notice is a clear example of political vendetta and actuated by malice to harass the political opponent by the ruling party.
- The respondent said that the notice has been issued as per the principals of natural justice to facilitate the appellant to clarify regarding his assets and known sources of income, which would enable the investigating officer to ascertain whether cognizable offence is disclosed or not. It was also submitted that the concerned authorities had already found prima facie evidence against the accused hence this enquiry was valid. The petitioner however did not cooperate with any of the notices issued.
ANALYSIS OF JUDGEMENT
1. The court in paragraph 6 of the judgement held that - At the outset, it is required to be noted that what was challenged before the High Court was notice issued by the Police Inspector, Anti- Corruption Bureau, Nagpur, by which the appellant has been called upon to give his statement in respect of the properties owned by him, for the purpose of enquiring the complaint against him, alleging accumulating the assets disproportionate to his known sources of income which, as such, was/is at pre-FIR stage. By the aforesaid notice dated 4.3.2020, the appellant has been called upon to carry along with the information on the following aspects for the purpose of recording his statement:
- Record in respect of ancestral and self-acquired property in your name, for example, Registered Deed, Construction Licence, Receipts relating to tax, Sale Deed of Agricultural Land, 7/12 Extract and Mutation Entries, etc.
- Details of ancestral and self-acquired gold coins and jewellery, likewise sale and purchase of vehicle.
- Passbooks, Certificates, L.I.C., Shares/Debentures Certificates, etc. in respect of investments at bank, insurance and others in your name and in the name of your family members.
- Details of documentary evidence in respect of loan borrowed.
- Proofs and income tax return
- Details of expenditure incurred by you in respect of pilgrimages,
- functions, hospitals, foreign tours, etc.
- Information regarding remuneration and allowances received.
2. The High Court, by the impugned judgment and order, has refused to quash the said notice mainly relying upon the decision of this Court in the case of Lalita Kumari.While considering the larger question, whether police is duty bound to register an FIR and/or it is mandatory for registration of FIR.
3. The court has also considered the situations/cases in which preliminary enquiry is permissible/desirable.
As per the decision of this Court, the categories of cases in which preliminary enquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay in initiating criminal prosecution.
4. The court in its judgement also referred to the case of P. Sirajuddin v. State of Madras2 in which case this Court expressed the need for a preliminary enquiry before proceeding against public servants.
5. The court also observed that “when such an enquiry is to be held for the purpose of finding out whether criminal proceedings are to be initiated and the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the person against whom the allegations are made and documents bearing on the same to find out whether there is a prima facie evidence of guilt of the officer, thereafter, the ordinary law of the land must take its course and further enquiry be proceeded with in terms of the CrPC by lodging a first information report”.
6. Recalling as it was held by this Court in the case of Superintendent of Police, CBI v. Tapan Kumar Singh (2003) 6 SCC 175, a GD entry recording the information by the informant disclosing the commission of a cognizable offence can be treated as FIR in each case and the police has the power and jurisdiction to investigate the same.
7. The court in paragraph 10, laid down the following instructions which are to be followed when an open enquiry is taking place -
(a) As soon as an application or information is received by him for making an open enquiry, it should be entered in the Enquiry Register and further developments recorded in it from time to time. (For proforma of the Register see Appendix XX). The number of the file allotted to the enquiry should be cited in all references.
(b) The contents of the application or information should be scrutinized carefully and various allegations contained therein be noted seriatum.
(c) A plan of action should be prepared, indicating therein –The Director’s file number and the date of receipt, Serial number of the allegation, Allegations in brief, Name of witnesses to be examined or likely to be examined, Papers or documents to be collected and Probable date of completion of the enquiry.
(d) The plan of action prepared by the Enquiry Officer as above, should be submitted within seven days of the receipt of the enquiry to the Director.
(e) The statement of the applicant should be recorded nothing therein all the circumstances within his knowledge with regard to the allegations.
(f) The statements of all the witnesses whose names might transpire during the examination of the applicant and also of other witnesses, if any, should be recorded.
(g) All available documentary evidence in support of the allegation should be collected.
(h) The statement of the person against whom the allegations have been made should be recorded, giving him an opportunity to explain each allegation against him. The application should not be shown to him in any circumstances. The name of the applicant should not be disclosed, if the applicant so expressly desires.
(i) The statements of all persons cited in defence should be recorded and the relevant documentary evidence collected.
(j) After recording the evidence of both the sides and collecting the necessary documents, the entire record should be examined to formulate a definite opinion on each of the allegations.
(k) The papers of enquiry, with the final report, should be submitted to the Director.
(l) A copy of a ‘Roznama’ containing details showing the day-to-day progress of the enquiry should be maintained as from the date of the receipt of the application and attached to the papers of enquiry and the final report.”
8. Statements of such nature as in this case cannot be said to be confessional in nature, 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.
9. If during the enquiry at preregistration of FIR stage, if the petitioner satisfies on production of the materials produced relating to his known sources of income and the assets, in that case, no FIR will be filed and if he is not able to clarify his/her assets, regarding, known sources of income, then the FIR will be lodged, and he will be exposed to trial. Therefore, as such, an enquiry would be to safeguard his interest also which may prevent further harassment to him.
10. With the above stated reasons, the Supreme court finds no reason to contradict the High court’s findings and the appeal was rejected.
CONCLUSION
In this case, the High Court dismissed the challenge against a notice issued to the appellant by the Police Inspector, Anti-Corruption Bureau, Nagpur
The High Court refused to quash the said notice principally relying upon the decision of this Court in Lalita Kumari, the Court also adverted to the decision of 1970 in the judgment of P Sirajuddin v. State of Madras in which case the Supreme Court had expressed the need for a preliminary enquiry before proceeding against public servants who are charged with corruption or misconduct.
In this case, the question before the court was whether preliminary enquiry at pre-FIR stage is permissible or not. While analyzing the case, the court held that the preliminary enquiry in cases of corruption is not only permissible but also desirable. After such preliminary enquiry before the registration of FIR, if, based on the material collected during such enquiry, it is found that the complaint is exasperating and/or there is no material at all in the complaint, the FIR shall not be lodged.
The court also laid down conditions in which cases, this preliminary enquiry will be valid, and the court also explained the instructions to be followed in an open enquiry.
Principally the court held that preliminary enquiry at pre-FIR stage in cases of corruption is not only permissible but also desirable.
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