Supreme Court of India: The Division Bench comprising of Dhananjaya Y. Chandrachud and M.R. Shah*, JJ., addressed the instant appeal challenging the validity of notice send to the appellant by Anti-corruption Bureau regarding pre-FIR open enquiry against him. The Bench stated,
“…(If) an enquiry is held and/or conducted after following the procedure as per Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual, it cannot be said that the same is illegal and/or the police officer, Anti-corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry at pre-registration of FIR stage.”
The background of the instant case relates to various allegations made against the appellant and his brothers with regard to accumulating the assets disproportionate to his known sources of income. Noticeably, the appellant was a Member and President of Municipal Council, Katol, Nagpur. In connection with the said complaint, the Police Inspector, Anti-corruption Bureau, had issued a notice, calling upon the appellant to personally remain present before the investigating officer of the Anti-corruption Bureau to give his statement in an ‘open enquiry’ in respect of the property owned by him along with the information on the points stated in the said notice and further, asking him to provide documents relating to his property, assets, bank statements, income tax returns.
The grievance of the petitioner was that the Police Inspector, Anti-Corruption Bureau, had no power to issue the said notice. It was also submitted that there is no statutory provision which would compel any body to give statement to the police. It was also submitted that there was no FIR against the appellant. Per contra, the respondent authority submitted that the said ‘open enquiry’ was ordered to find out if an offence under Section 13(e) of the Prevention of Corruption Act was disclosed.
Whether such an enquiry at pre-FIR stage would be legal and to what extent such an enquiry is permissible?
In Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, this Court had observed that it is mandatory to register an FIR on receipt of information disclosing a cognizable offence. However, this Court had also considered the situations/cases in which preliminary enquiry is permissible/desirable and certain illustrations were also carved out in which the preliminary enquiry was held to be permissible/desirable before registering/lodging of an FIR. It was further observed that if the information received did not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not. It had been clarified that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. Similarly, in P. Sirajuddin v. State of Madras, (1970) 1 SCC 595, this Court expressed the need for a preliminary enquiry before proceeding against public servants.
When a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of indulging into corrupt practice, it does incalculable harm not only to the officer in particular but to the department he belonged to in general. Thus, before lodging FIR against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer to ascertain whether cognizable offence is disclosed or not.
Observing that a fool proof safeguard and procedure is provided under the Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual of Instructions 1968, before lodging an FIR/complaint before the Court against the public servant, the Bench disregarded any doubt of irregularity regarding the issuance of impugned notice. Further, the Bench observed that the information sought on the aforesaid points was having a direct connection with the allegations made against the appellant, namely, accumulating assets disproportionate to his known sources of income. Clarifying that such an ‘open enquiry’, should be restricted to facilitate the appellant to clarify regarding his assets and known sources of income, the Bench said the same could not be said to be a fishing or roving enquiry.
Clarifying that the statement of the appellant and the information so received during the course of discrete enquiry should be only for the purpose to satisfy and find out whether an offence under Section 13(1)(e) of the PC Act, 1988 was disclosed. Such a statement cannot be said to be confessional in character, and would be restricted only to ascertain whether a cognizable offence is disclosed or not. The Bench held that such an enquiry would be to safeguard the interest of appellant which may avoid further harassment to him. Hence, the Bench refused to interfere with the impugned judgment and order passed by the High Court of Bombay and dismissed the appeal with the above observations.
[Charansingh v. State of Maharashtra, 2021 SCC OnLine SC 251, decided on 24-03-2021]
Kamini Sharma, Editorial Assistant has put this report together
*Judgment by: Justice M.R. Shah
Appearance before the Court by:
For the Appellant: Sr. Adv. Subodh Dharmadhikari,
For the Respondent/s: Sr. Adv. Raja Thakare