The State of Jammu & Kashmir and Others vs Dr. Saleem Ur Rehman

Vigilance Manual, 2008: Rule 3.16 – Validity of – A close reading of Rule 3.16 showed that the same can be said to be in the interest of the accused and/or a person against whom the allegations are made and to safeguard the accused against frivolous complaints – As per Clause 3.16 only after the Preliminary Enquiry is conducted and there is a prima facie case found, an FIR is required to be registered – Considering the nature of offences, a detailed enquiry is required and therefore it is observed in Clause 3.16 that a PE should be completed normally within a period of six months – As per the law laid down in the case of Lalita Kumari, a detailed investigation into the allegations on merits is not required by holding Preliminary Enquiry and that such enquiry is to be completed within a period of seven days, however, it is not held that if the Preliminary Enquiry is not completed within a period of seven days, the entire criminal proceedings would be void and the same are to be quashed – Rule 3.16 can be said to be in consonance with the observations and the law laid down by this Court in the case of Lalita Kumari. Vigilance Manual, 2008: Rule 3.16 – While considering the prima facie case for the purpose of registering the FIR, some enquiry/investigation is bound to be there, however, the same shall be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR only – Whatever enquiry is conducted at the stage of Preliminary Enquiry, by no stretch of imagination, will be considered as investigation under the Code of Criminal Procedure which can only be after registration of the FIR – Even otherwise, merely because while holding a Preliminary Enquiry a detailed enquiry is made into the allegations made against the respondent which can be said to be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR and merely because some more time is taken in conducting the Preliminary Enquiry before registering the FIR, the entire criminal proceedings cannot be quashed – There shall not be any prejudice caused to the accused at the stage of holding Preliminary Enquiry which shall only be for the purpose of satisfying whether any prima facie case is made out with respect to the allegations made in the complaint which requires further investigation after registering the FIR or not – Therefore, the High Court has materially erred in holding and declaring Clause 3.16 as ultra vires.

Liability: Vicariously liability of respondent in the absence of main conspirators – Allegations against the respondent are in respect of his individual capacity – Therefore, there is no question of any vicarious liability.

Allowing the appeal, the Court

HELD: 1.1 It cannot be said that there was any nonapplication of mind on the part of the Senior Superintendent of Police authorising the inspector ‘NH’ to enquire into the FIR for the offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and 120-B of the Ranbir Penal Code. Inspector ‘NH’ who was authorised to investigate the FIR for the said offences was also authorised to arrest the accused persons whenever and wherever necessary. In the said authorisation, it was specifically mentioned that he will conduct the investigation of the case under the supervision of the Superintendent of Police (BKB). Therefore, all precautions are taken by the Senior Superintendent of Police authorising the Inspector ‘NH’ to investigate the FIR for the offences under the J&K PC Act, 2006. [Para 8.6][893-G-H; 894-A-B]

State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC

335 : [1990] 3 Suppl. SCR 259; State of M.P. v. Ram Singh (2000) 5 SCC 88: [2000] 1 SCR 579 – relied on.

1.2 Even otherwise, a plain reading of the second proviso to Section 3 showed that only two requirements are required to be satisfied, namely, (i) authorisation in writing by an officer of the Vigilance Organisation not below the rank of Assistant Superintendent of Police to an officer of not below the rank of Sub-Inspector of Police to investigate such offences; and (ii) such officer authorised may investigate the offences so specified in the order of authorisation. Therefore, as such, there is no requirement of giving either special reasons or there is no requirement to mention reasons. What is required to be considered is whether there is an application of mind with respect to offences and the relevant provisions with respect to authorisation. Considering the above authorisation, it cannot be said that such authorisation authorising Inspector ‘NH’ to investigate the FIR for the offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and 120B of the RPC can be said to be vitiated and/or can be said to be void which warrants quashing of the entire criminal proceedings including the FIR. Therefore, as such, the High Court has committed a grave error in quashing the entire criminal proceedings holding that authorisation in favour of Inspector ‘NH’ was bad in law, relying upon the observations made by this Court in the case of Bhajan Lal, which has been subsequently explained by this court in the case of Ram Singh. In the facts and circumstances of the case and considering the authorisation read with the second proviso to Section 3, authorisation cannot be said to be illegal and/or invalid. [Para 8.6][894-C-G]

2.1 Now so far as the finding recorded by the High Court for non-compliance of Section 155 of J&K Cr.P.C. is concerned, the High Court has observed that for an investigating agency to investigate the group of offences which include the non-cognizable one, it must obtain a sanction from the concerned Magistrate before launching the investigation and in the present case no such sanction from the concerned Magistrate was obtained, the substantive offences against the respondent were under J&K PC Act, 2006 and as per Section 3 of the Act, all offences under the Act are cognizable and non-bailable. As such, the aforesaid issue is squarely covered against the respondent in view of the decision of this Court in the case of Pravin Chandra Mody. [Para 9][894-G-H; 895-A-B]

Pravin Chandra Mody v. State of Andhra Pradesh [1965] 1 SCR 269 – relied on.

2.2 In the instant case, the offence under the Prevention of Corruption Act is a substantive offence and the investigation in respect of the offence under the PC Act, when considered and coupled with the offence of conspiracy, there is no requirement of prior sanction of the Magistrate. Merely because the offence of the conspiracy may be involved, investigation into the substantive offence, i.e., in the present case, offence under the PC Act which is cognizable is not required to await a sanction from the Magistrate, as that would lead to a considerable delay and affect the investigation and it will derail the investigation. Therefore, the High Court has erred in quashing the criminal proceedings on the ground that as the offence under Section 120B which is a non-cognizable, prior sanction as required under Section 155 of J&K Cr.P.C. is not obtained. [Para 10][895-G-H; 896-A-B]

3. Rule 3.16 of the Vigilance Manual, 2008 can be said to be in consonance with the observations and the law laid down by this Court in the case of Lalita Kumari. A close reading of Rule/Clause 3.16 showed that even the same can be said to be in the interest of the accused and/or a person against whom the allegations are made and to safeguard the accused against frivolous complaints. As per Clause 3.16 only after the Preliminary Enquiry is conducted and there is a prima facie case found, an FIR is required to be registered. Considering the nature of offences, a detailed enquiry is required and therefore it is observed in Clause 3.16 that a PE should be completed normally within a period of six months. It is the case on behalf of the respondent and even as observed and held by the High Court in the impugned judgment and order as per the law laid down by this Court in the case of Lalita Kumari, a detailed investigation into the allegations on merits is not required by holding Preliminary Enquiry and that such enquiry is to be completed within a period of 7 days is concerned, it is to be noted that in the case of Lalita Kumari, it is not held that if the Preliminary Enquiry is not completed within a period of 7 days, the entire criminal proceedings would be void and the same are to be quashed. [Paras 11, 12][896-C, G-H; 897-A-B]

Lalita Kumari v. Government of Uttar Pradesh AIR 2014 SC 187 : 2014 (2) SCC 1: [2013] 14 SCR 713; State of Punjab v. Brij Lal Palta [1969] 1 SCR 853; Satya Narain Musadi v. State of Bihar (1980) 3 SCC 152; Madan Lal v. State of Punjab [1967] 3 SCR 439; Bhanwar Singh v. State of Rajasthan [1968] 2 SCR 528 – relied on.

4.1 While holding a Preliminary Enquiry under Clause 3.16, whatever is conducted will be in the form of enquiry into the allegations to consider whether any prima facie case is made out which requires further investigation after registering the FIR. While considering the prima facie case for the purpose of registering the FIR, some enquiry/investigation is bound to be there, however, the same shall be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR only. Whatever enquiry is conducted at the stage of Preliminary Enquiry, by no stretch of imagination, will be considered as investigation under the Code of Criminal Procedure which can only be after registration of the FIR. Even otherwise, merely because while holding a Preliminary Enquiry a detailed enquiry is made into the allegations made against the respondent which can be said to be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR and merely because some more time is taken in conducting the Preliminary Enquiry before registering the FIR, the entire criminal proceedings cannot be quashed. There shall not be any prejudice caused to the accused at the stage of holding Preliminary Enquiry which shall only be for the purpose of satisfying whether any prima facie case is made out with respect to the allegations made in the complaint which requires further investigation after registering the FIR or not. Therefore, the High Court has materially erred in holding and declaring Clause 3.16 as ultra vires. [Para 13][897-D-H]

4.2 Now so far as the 4th ground/question on which the High Court has quashed the criminal proceedings, namely, the respondent cannot be held vicariously liable in the absence of main conspirators – Private Limited Companies and/or their incharge persons is concerned, it is to be noted that the allegations against the respondent are in respect of his individual capacity. Besides the Directors of the Private Limited Companies, respondent no.1 and other officials have been arrayed as an accused. Therefore, there is no question of any vicarious liability and the observations made by the High Court that in absence of main conspirators – Private Limited Companies and/or their incharge persons, respondent no.1 cannot be held liable is unsustainable and cannot be accepted. The High Court has erred in quashing the entire criminal proceedings on the aforesaid ground. [Para 14][898-A-C]

S.N. Mukherjee v. Union of India (1990) 4 SCC 594 : [1990] 1 Suppl. SCR 44; Union of India v. E.G. Nambudiri (1991) 3 SCC 38 : [1991] 2 SCR 451; Oryx Fisheries Pvt. Ltd. v. Union of India (2010) 13 SCC

427 : [2010] 13 SCR 234; Special Land Acquisition Officer, Bombay v. Godrej & Boyce (1988) 1 SCC 50 : [1988] 1 SCR 590; Indian National Congress v. Institute of Social Welfare (2002) 5 SCC 685 : [2002] 3

SCR 1040; Nazir Ahmad v. The King Emperor AIR 1936 PC 253; State of Uttar Pradesh v. Singhara Singh [1964] 4 SCR 485; Priyanka Srivastava v. State of Uttar Pradesh (2015) 6 SCC 287 : [2015] 4 SCR 108 –

referred to.

Taylor v. Taylor (1875) 1 Ch.D, 426, 431– referred to.