Charansingh vs State of Maharashtra and Others

Code of Criminal Procedure, 1973: Preliminary enquiry – Extent of, permissibility – By the impugned notice, during the course of the ‘open enquiry’, the appellant was called upon to give his statement and to carry along with the information on the points, which are referred for the purpose of recording his statement – The information sought on the said points had direct connection with the allegations made against the appellant, namely, accumulating assets disproportionate to his known sources of income – However, such a notice, while conducting the ‘open enquiry’, shall be restricted to facilitate the appellant to clarify regarding his assets and known sources of income – The same cannot be said to be a fishing or roving enquiry. Such a statement cannot be said to be a statement under s.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 s.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 – Prevention of Corruption Act, 1988 – s.13(1)(e).

Dismissing the appeal, the Court

HELD: 1.1 While considering the larger question, whether police is duty bound to register an FIR and/or it is mandatory for registration of FIR on receipt of information disclosing a cognizable offence and whether it is mandatory or the police officer has option, discretion or latitude of conducting preliminary enquiry before registering FIR, this Court in the case of Lalita Kumari has observed that it is mandatory to register an FIR on receipt of information disclosing a cognizable offence and it is the general rule. However, while holding so, this Court has also considered the situations/cases in which preliminary enquiry is permissible/desirable. While holding that the registration of FIR is mandatory under Section 154, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation and the same is the general rule and must be strictly complied with, this Court has carved out certain situations/cases in which the preliminary enquiry is held to be permissible/desirable before registering/lodging of an FIR. It is further observed that if the information received does 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 is observed that as to what type and in which cases the preliminary enquiry is to be conducted will depend upon the facts and circumstances of each case. 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/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay. These are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. [Para 8.1][720-A-G] P. Sirajuddin v. State of Madras (1970) 1 SCC 595 : [1970] 3 SCR 931; Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1 : [2013] 14 SCR 713 – relied on.

1.2 While expressing the need for a preliminary enquiry before proceeding against public servants who are charged with the allegation of corruption, it is observed in the case of P. Sirajuddin that “before 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 and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person who is occupying the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to in general. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department”. It is further 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 Code of Criminal Procedure by lodging a first information report”. [Para 9][722-E-G; 723-A]

2. 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. 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. [Para 9.1][723-B-D]

3. Even as held by this Court in the case of Superintendent of Police, CBI v. Tapan Kumar Singh, a GD entry recording the information by the informant disclosing the commission of a cognizable offence can be treated as FIR in a given case and the police has the power and jurisdiction to investigate the same. However, in an appropriate case, such as allegations of misconduct of corrupt practice by a public servant, before lodging the first information report and further conducting the investigation, if the preliminary enquiry is conducted to ascertain whether a cognizable offence is disclosed or not, no fault can be found. Even at the stage of registering the FIR, what is required to be considered is whether the information given discloses the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage, it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. Despite the proposition of law laid down by this Court in catena of decisions that at the stage of lodging the first information report, the police officer need not be satisfied or convinced that a cognizable offence has been committed, considering the observations made by this Court in the case of P. Sirajuddin and considering the observations by this Court in the case of Lalita Kumari before lodging the FIR, 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. [Para 9.2][723-E-H; 724-A-B] Superintendent of Police,CBI v. Tapan Kumar Singh (2003) 6 SCC 175 : [2003] 3 SCR 485 – relied on.

4. In the present case, the office of the Director General, ACB, Maharashtra State, Mumbai had received a complaint against the appellant and his three brothers, wherein various allegations have been made against the appellant with regard to accumulating the assets disproportionate to his known sources of income. At that time, the appellant was a Member and President of the Municipal Council, Katol, District Nagpur. On the basis of the said complaint, the Superintendent of Police, Anti-corruption Bureau, Nagpur initiated a discrete enquiry against the appellant with regard to the allegations in the complaint through the officers working under him. After conducting a discrete enquiry, report dated 27.2.2020 has been submitted to the Superintendent of Police, ACB, Nagpur. After scrutiny of the said report, the same has been forwarded to the Director General of Police, ACB. After considering the report, the Director General of Police, ACB had directed the Superintendent of Police who in turn had directed the Police Inspector, ACB, Nagpur to conduct an ‘open enquiry’ and during the course of conducting an ‘open enquiry’, the appellant against whom the allegations are made of accumulating the assets disproportionate to his known sources of income, which can be said to be an offence under Section 13(1)(e) of the PC Act, has been served with the impugned notice, impugned before the High Court. A detailed procedure is provided under the Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual of Instructions 1968, while conducting open enquiries. Discrete enquiry is permissible as per para 14 of the said Manual and the ‘open enquiry’ is permissible as per para 15 of the said Manual. While conducting open enquiries, the enquiry officer who is conducting the ‘open enquiry’ is required to follow the following instructions: 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. The contents of the application or information should be scrutinized carefully and various allegations contained therein be noted seriatum. 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. 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. The statement of the applicant should be recorded noting therein all the circumstances within his knowledge with regard to the allegations. 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. All available documentary evidence in support of the allegation should be collected. 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. The statements of all persons cited in defence should be recorded and the relevant documentary evidence collected. 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. The papers of enquiry, with the final report, should be submitted to the Director. 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. [Para 10][724-C-H; 725-A-H; 726-A-C]

5. After completing the enquiry, a final report along with the papers of the enquiry is required to be sent to the Director General, ACB. Even, while submitting the final report and the papers of the enquiry, which are the points to be considered and/or borne in mind are stated in para 16 of the Manual. Only thereafter and if it is found that a cognizable offence is made out and there is substance in the allegations, an FIR would be lodged and further investigation will be carried out after following the procedure as per the Code of Criminal Procedure. Therefore, a fool proof safeguard and procedure is provided before lodging an FIR/complaint before the Court against the public servant, who is facing the allegations of corrupt practice. However, such an enquiry would be conducted to ascertain whether a cognizable offence is disclosed or not. Even at the stage of registering the first information report, the police officer is not required to be satisfied or convinced that a cognizable offence has been committed. It is enough if the information discloses the commission of a cognizable offence as the information only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. Therefore, as such, holding such an enquiry, may be discrete/open enquiry, at pre-registration of FIR stage in the case of allegation of corrupt practice of accumulating assets disproportionate to his known sources of income, cannot be said to be per se illegal. [Para 10.1][726-C-G]

6. The next question posed for the consideration of this Court is, whether to what extent such an enquiry is permissible and what would be the scope and ambit of such an enquiry. By the impugned notice, impugned before the High Court, and during the course of the ‘open enquiry’, the appellant has been called upon to give his statement and he has been called upon to carry along with the information on the points, which are referred for the purpose of recording his statement. The information sought on the aforesaid points is having a direct connection with the allegations made against the appellant, namely, accumulating assets disproportionate to his known sources of income. However, such a notice, while conducting the ‘open enquiry’, shall be restricted to facilitate the appellant to clarify regarding his assets and known sources of income. 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. [Para 11][726-H; 727-A-D]

7. At this stage, it is required to be noted that in the present case as such the appellant has produced the relevant documents of some of the properties owned by him and the appellant has joined the ‘open enquiry’. It also appears from the counter filed on behalf of the Anti-corruption Bureau that on the basis of the information given by the appellant, letters have been issued to various authorities/banks, seeking further and better particulars. Partial statement of the appellant has already been recorded. However, such a statement/enquiry would be restricted only to ascertain whether a cognizable offence is disclosed or not. Such a statement cannot be said to be a confessional statement. After having been satisfied and after conclusion of the enquiry and on the basis of the material collected, if it is found that there is substance in the allegations against the appellant and it discloses a cognizable offence, FIR will be lodged and the investigating agency has to collect the evidence/further evidence to substantiate the allegations/charge of accumulating the assets disproportionate to his known sources of income. However, if during the enquiry at pre-registration of FIR stage, if the appellant satisfies on production of the materials produced relating to his known sources of income and the assets, in that case, no FIR will be lodged and if he is not able to clarify his assets, vis-à-vis, known sources of income, then the FIR will be lodged and he will be subjected to trial. Therefore, as such, such an enquiry would be to safeguard his interest also which may avoid further harassment to him. [Para 12]