Supreme Court: In five appeals against the judgment and order passed by the Chhattisgarh High Court, whereby 3 writ petitions were allowed by quashing First Information Report (‘FIR') registered for offences under Section 13(1)(b) and (2), Prevention of Corruption Act, 1988 (‘P.C. Act') read with section 120B of the Penal Code (‘IPC'), registered by the Economic Offences Wing/Anti-Corruption Bureau of the State, the division bench of S. Ravindra Bhat and Dipankar Datta*, JJ. held that the High Court was not justified in its interference with the investigative process and committed an error of law in quashing the FIR on the grounds it did. Further, it held that there are no cogent grounds for quashing the FIR in the present case even on the ground of mala fide.

The issues in this case are:

Whether the High Court was justified in its interference with the FIR?

The Court took note of the definition of “Public Servant” in Sections 2(c) and 13(1) of the PC Act and said that intentional enrichment illicitly by a public servant during the period of his office is a criminal misconduct. The law of the land abhors any public servant to intentionally enrich himself illicitly during the tenure of his service. An increase in the assets of such a public servant tantamount to constitutionally impermissible conduct and such conduct is liable to be put under the scanner of the P.C. Act.

It also said that when a FIR has been registered pursuant to a preliminary inquiry into the complaint it is in course of an investigation that materials are required to be collected and based on such requisite evidence of possession of pecuniary resources or acquisition of assets or property disproportionate to the known sources of income of the public servant that a police report under section 173(2), CrPC could be laid.

The Court reiterated that when an investigation is yet to start, there should be no scrutiny to what extent the allegations in a FIR are probable, reliable or genuine and that a FIR can be registered merely on suspicion, the High Court ought to have realised that the FIR which, according to it, was based on “probabilities” ought not to have been interdicted. Viewed through the prism of gravity of allegations, a FIR based on “probability” of a crime having been committed would obviously be of a higher degree as compared to a first information report lodged on a “mere suspicion” that a crime has been committed. The High Court failed to bear in mind these principles and precisely did what it was not supposed to do at this stage. Thus, it was held that the High Court was not justified in its interference on the grounds it did.

Whether and to what extent would a Court exercising power under Article 226 of the Constitution or section 482 of the Code of Criminal Procedure, 1973 (‘CrPC') be justified to quash a FIR registered under section 13 of the P.C. Act while the police embark on an investigation against a public servant particularly in view of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 ?

The Court said that the High Court did not bear in mind the note of caution in Bhajan Lal (supra) to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; further that, the court will not be justified in embarking upon an enquiry as to the genuineness of the allegations made in the FIR or the complaint; and also that, the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice

The Court perused the writ petitions and said that the pleadings are insufficient to say that the FIR is an outcome of mala fide. Mala fide motives are required to be affirmatively pleaded and proved. The High Court even did not examine whether exceptions could have been taken to the FIR on the ground of mala fide.

Placing reliance on State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 , the Court reiterated that the person against whom mala fide or bias is imputed should be impleaded as a party to the proceedings eo nomine and that in his/her absence no inquiry into the allegations can be made. Since the incumbent holding the office of Chief Minister against whom mala fide is alleged is not on record, thus, the bench gave no importance to the allegations of mala fide even if there were any.

It said 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, and whether the FIR is the outcome of mala fide would be of secondary importance. Hence, it held that the plea of mala fide may not per se form the basis for quashing the FIR/complaint.

The Court observed that it is difficult to form an opinion conclusively at the stage of reading a FIR, that the public servant is either in or not in possession of property disproportionate to the known sources of his/her income. It would all depend on what is ultimately unearthed after the investigation is complete

The Court said that it is desirable if the High Courts maintain a hands-off approach and not quash a FIR pertaining to “corruption” cases, especially at the stage of investigation, even though certain elements of strong-arm tactics of the ruling dispensation might be discernible. Further, it said that the considerations that could apply to quashing of FIR pertaining to offences punishable under general penal statutes ex proprio vigore may not be applicable to a P.C. Act offence.

The Court clarified that it has no intention to prevent 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 FIR resting on mala fide.

Thus, the Court held that there are no cogent grounds for quashing the FIR in the present case even on the ground of mala fide.

[State of Chattisgarh v. Aman Kumar Singh, 2023 SCC OnLine SC 198, decided on 01-03-2023]

*Judgment by: Justice Dipankar Datta

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