Code of Criminal Procedure, 1973:
s.482 – Petition under – For quashing the charge-sheet alleging offences under Prevention of Corruption Act, 1988 – High Court partly allowed the petition holding that there was no authorization to register the crime and that the informant could not be the investigating officer – However, the Court did not accept the pleas of the accused viz. absence of preliminary inquiry before registration of crime; absence of sanction before prosecution; and delay in completion of the investigation – Appeal to Supreme Court by the State as well as the accused – Held: The authorizing Officer had discharged his duties in exercise of the powers confirmed by the State Government – The authorization in favour of the Investigating Officer was issued by the authorizing officer while performing his duties in public interest – Therefore such authorization is valid and binding as if it was an act of an officer de jure – The High Court had no jurisdiction to decide the nature of employment of authorising Officer while deciding a petition u/s.482 – In the facts of the present case preliminary inquiry was not required and sanction could be produced during the course of trial – Matter remitted to trial court for further proceedings. Prevention of Corruption Act, 1988:
s.17 – Non-compliance – Effect of – Held: If an investigation is not conducted by a police officer of requisite rank and status required u/s. 17, such lapse would be an irregularity – If such irregularity does not result in causing prejudice, conviction will not be vitiated on this ground – Investigation. Constitutionalism:
Executive powers of State – Scope of – Held: Executive powers of State is coterminus with the legislative power of the State Legislature – State Executive has power to make regulations and issue Government Orders in respect of a subject on which the State Legislature has jurisdiction to make law.
Inquiry:
Preliminary inquiry – Requirement of – Before lodging FIR – Held: Scope and ambit of preliminary inquiry before lodging an FIR, would depend upon the facts of each case – Objective of such inquiry is only to ensure that criminal investigation does not initiate on frivolous and untenable complaint – In the present case, since the relevant information was available in respect of prima facie allegations disclosing a cognizable offence, conducting of preliminary inquiry was not required.
Dismissing the appeal of the accused, while allowing that of the State, the Court
HELD: 1.1 Article 310 of the Constitution of India contemplates that except as expressly provided, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union, holds office at the pleasure of the President. In respect of the State Services, however, he or she holds office at the pleasure of the Governor. In the present case, ‘K’ was re-employed for a period of one year by the State Government in exercise of powers conferred under Article 162 of the Constitution of India. There is no prohibition in any of the service rules that there cannot be any re-employment of a person who was once in a civil service of either the Center or the State. [Para 10] [727-D-F]
1.2 Entry 2 of List II of the Seventh Schedule of the Constitution is the ‘Police’ (including railway and village police) subject to the provisions of Entry 2A of List I. Therefore, various facets of Policing in the State fall within the legislative competence of the State and the re-employment of a retired personnel who was a member of Indian Police Service, falls within the executive power of the State. As a re-employed officer, he was holding a civil post as his salary was being paid from the State Exchequer. He was discharging duties and responsibilities in the Anti-Corruption Bureau. [Para 11] [727-G-H]
1.3 The executive power of the State is coterminous with the legislative power of the State Legislature i.e. if the State Legislature has jurisdiction to make law with respect to a subject, the State executive can make regulations and issue Government orders with respect to it. The executive power of the State Government cannot be circumscribed if it does not go against the provisions of the Constitution or any law. [Paras 12 and 13] [728-A-B-E-F]
P.H. Paul Manoj Pandian v. P. Veldurai (2011) 5 SCC
214 : [2011] 5 SCR 254 ; Bishambhar Dayal Chandra Mohan & Ors. v. State of Uttar Pradesh & Ors. (1982)
1 SCC 39 : [1982] 1 SCR 1137 – relied on.
1.4 ‘K’ was re-employed initially for a period of one year after his retirement. He was not being recruited for holding a civil post for the first time which may warrant compliance of rigour of Article 16 of the Constitution. He had crossed all bridges, when he was appointed and discharged duties before attaining the age of superannuation. Such re-employment by the State is in exercise of the powers conferred under Article 162 of the Constitution of India. Such executive powers of the State do not contravene any other statutory provisions; therefore, reemployment in this regard is supplementing the statutory rules and regulations and not supplanting them. Therefore, ‘K’ has discharged the duties of Joint Director in the Anti-Corruption Bureau in exercise of the powers conferred by the State Government. [Para 14] [729-D-E]
1.5 Further, ‘K’, whilst discharging the duties of Joint Director in the Anti-Corruption Bureau were within the scope of the assumed official authority in public interest and not for his own benefit. Therefore, acts undertaken in this regard by the officer will be taken to be valid. The authorisation in favour of ‘S’ was issued when ‘K’ was performing his duties in public interest and not for his own benefit. Therefore, such authorisation is valid and binding as if it was an act of an officer de jure. [Paras 15 and 21] [729-F-G; 735-A-B] Gokaraju Rangaraju v. State of Andhra Pradesh (1981) 3 SCC 132 : [1981] 3 SCR 474 ; Pushpadevi M. Jatia v. M. L. Wadhawan, Additional Secretary, Government of India and Ors. (1987) 3 SCC 367 : [1987] 3 SCR 46 ; VeerendraKumar Gautam & Ors. v. Karuna Nidhan Upadhyay & Ors. (2016) 14 SCC
18 : [2016] 7 SCR 223 – relied on.
Pulin Behari Das v. King Emperor (1911) SCC OnLine Cal 159 ; P.S. Menonv. State of Kerala AIR 1970 Ker
165 ; P. Mahamani v. Tamil Nadu Magnesite, Ltd., Salem & Ors. (1993) 2 LLN 353 – referred to.
1.6 The High Court, while deciding a petition for quashing of proceedings under Section 482 of Cr.P.C could not have commented upon the nature of employment of ‘K’, as such a question does not fall within the jurisdiction of the High Court whilst deciding the aforementioned petition. [Para 22] [735-BC]
1.7 ‘K’ had authorised ‘S’ and the final report had been filed after the investigation conducted by the latter, in terms of clause (c) of Section 17 of the Prevention of Corruption Act. In this regard, it cannot be said that the investigation was not conducted in a manner contemplated under law. Thus, ‘S’ was an authorized Officer, competent to investigate and file a report for the offences under the Act including of an offence under Section 13(1)(e) of the Act. [Para 23] [735-C-D]
1.8 The finding recorded by the High Court that the informant cannot be the investigating officer, ‘S’ being both the informant and the initiator of the investigations is based on *Mohan Lal case. In **Varinder Kumar case, *Mohan Lal case was held to have prospective effect hence, will not be applicable in the present case. [Para 24] [735-E]
*Mohan Lal v. State of Punjab (2018) 17 SCC 627 : [2018] 9 SCR 1006 – held inapplicable.
**Varider Kumar v. State of Himachal Pradesh (2019) SCC Online SC 170 – relied on.
1.9 Thus, the orders of the High Court to quash the proceedings against the Accused Officer are not sustainable and are consequently, set aside. Accordingly, the appeal filed by the State is allowed and the matter is remitted back to the trial court for further proceedings in accordance with law. [Para 26] [736B] Union Public Service Commissioner v. Girish Jayanti Lal Vaghela & Ors. (2006) 2 SCC 482 : [2006] 1 SCR 1006 – distinguished.
2.1 The scope and ambit of a preliminary inquiry being necessary before lodging an FIR, would depend upon the facts of each case. There is no set format or manner in which a preliminary inquiry is to be conducted. The objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. [Para 32] [739C]
2.2 In the present case, the FIR itself shows that the information collected was in respect of disproportionate assets of the Accused Officer. The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Herein, relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable offence. Therefore, once the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed. [Para 33] [739-D-F]
State of Haryana v. Bhajan Lal (1992) 1 Supp. SCC
335 : [1990] 3 Suppl. SCR 259 – relied on.
2.3 Therefore, the preliminary inquiry warranted in *Lalita Kumari case is not required to be mandatorily conducted in all corruption cases. The type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient. [Para 34] [740-A-B]
Lalita Kumari v. Government of Uttar Pradesh & Ors. (2014) 2 SCC 1 : [2013] 14 SCR 713 – relied on. State by Karnataka Lokayukta Police Station, Bengaluru v. M.R. Hiremath (2019) 7 SCC 515 – distinguished.
3.1 There is also no merit in the argument that there has been no sanction before the filing of the report. The sanction can be produced by the prosecution during the course of trial, so the same may not be necessary after retirement of the Accused Officer. The question as to whether a sanction is necessary to prosecute the Accused Officer, a retired public servant, is a question which can be examined during the course of the trial. [Paras 35 and 36] [740-C-E-F]
K. Kalimuthu v. State by DSP (2005) 4 SCC 512: [2005] 3 SCR 1 – relied on.
3.2 If an investigation was not conducted by a police officer of the requisite rank and status required under Section 17 of the Act, such lapse would be an irregularity, however unless such irregularity results in causing prejudice, conviction will not be vitiated or be bad in law. Therefore, the lack of sanction was rightly found not to be a ground for quashing of the proceedings. [Para 36] [740-F-G]
Vinod Kumar Garg v. State (Government of National Capital Territory of Delhi) [2020] 2 SCC 88 – relied on.
4. It is not correct to contend that amended provisions of the Prevention of Corruption Act as amended by Act XVI of 2018 would be applicable in the present case, as the Amending Act came into force before filing of the charge sheet. In the present case, the FIR was registered on 9th November, 2011 much before the Act was amended in the year 2018. Whether any offence has been committed or not has to be examined in the light of the provisions of the statute as it existed prior to the amendment carried out on 26th July, 2018. [Para 37] [741-B-C]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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