A preliminary enquiry at Pre-FIR stage is held to be permissible: SC

The registration of FIR is mandatory under Section 154 of The Code of Criminal Procedure, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. (Para 120 of Lalita Kumari)

CHARANSINGH V STATE OF MAHARASHTRA AND OTHERS

Criminal Appeal No.363 Of 2021

March 24, 2021

The Hon’ble Supreme Court Justice Dr. Dhananjaya Y. Chandrachud, M.R. Shah decided the present case. The complaint was received against the appellant with regard to accumulating the assets disproportionate to his known sources of income. The Police Inspector, Anti-corruption Bureau, Nagpur had issued a notice to the appellant asking him to provide documents relating to his property, assets, bank statements, income tax returns and asking the appellant to give statement to the police. The appellant preferred writ petition before the High Court. The High Court observed that it is true that by such notice a person like the appellant cannot be compelled to make his personal appearance before the officer of the Anti-Corruption Bureau. It further observed that not responding to such a notice may be at the peril of the notice himself for the reason that the officer of the Anti-Corruption Bureau may draw some adverse inference against the person not cooperating with the preliminary enquiry. The High Court, by the impugned judgment and order has dismissed the said writ petition, which has given rise to the present appeal.

The learned Senior Advocate appearing on behalf of the appellant has vehemently submitted that notice issued by the Anti-Corruption Bureau by which the appellant has been directed to appear before the investigating officer, Anti - Corruption Bureau, Nagpur and to make a statement in respect of the property owned by him and to give information on the points stated in the said notice has no statutory force. The appellant cannot be said to be a witness in the case, Section 160 of The Code of Criminal Procedure shall not be applicable at all. The High Court has materially erred in relying upon the Court in the case of Lalita Kumari. It has no statutory force even as observed and held by this Court in the case of Lalita Kumari. The prayer is to allow the present appeal and quash and set aside the impugned judgment and order passed by the High Court, as well as, impugned notice issued by the Anti-Corruption Bureau, Nagpur.

The Learned Senior Advocate has vehemently submitted that the notice issued by the Police Inspector, Anti-Corruption Bureau which permits the discrete enquiries and open enquiries, so as to find out the veracity of the allegations in the complaint. It is submitted that even the same is also permissible as per the decision of this Court in the case of Lalita Kumari. That on the basis of the said complaint, the Superintendent of Police, Anti-Corruption Bureau initiated a discrete enquiry against the appellant with regard to the allegations in the complaint through the officers working under him. The open enquiry is to find out the offence under Section 13(e) of the Prevention of Corruption Act is disclosed; Section 160 of The Code of Criminal Procedure has been inadvertently mentioned in the said notice. The despite number of notices issued, the appellant is not co-operating with the investigating agency and is not appearing for giving his statement on the points mentioned in the notice, on one pretext or the other. The appellant has been summoned for a preliminary enquiry only to ascertain whether cognizable offence is disclosed or not. If the preliminary enquiry discloses the cognizable offence, then a first information report will be registered against the appellant. However, that stage has not been reached as the appellant has only partially recorded his statement before the investigating officer and the preliminary enquiry has remained un-concluded. It is stated that if no substance is found during the ‘open enquiry’, the Anti-Corruption Bureau may close the enquiry without any further action. Further it is said that as on date no FIR has been registered against the appellant and the investigating authorities are only conducting the preliminary enquiry. The prayer is to dismiss the present appeal.

The complaint against a public servant regarding 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 Prevention of Corruption Act, 1988, an enquiry at pre-FIR stage is permissible or not and it is desirable or not, if any decision is required, the decision of the Court in the case of Lalita Kumari. A preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made.

The registration of FIR is mandatory under Section 154 of The Code of Criminal Procedure, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. (Para 120 of Lalita Kumari)

The police initiated an enquiry against the appellant, the report was submitted to Superintendent of Police and Forwarded to Directed General of Police. The Open Inquiry can be conducted by stating the sources of income. An enquiry would be conducted to ascertain whether a cognizable offence is disclosed or not. 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 preregistration 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.

The ‘open enquiry’, shall be restricted to facilitate the appellant to clarify regarding his assets and known sources of income. The statement cannot be said to be a statement under Section 160 and it is to be recorded during the course of investigation as per the Code of Criminal Procedure. It cannot be used against the appellant during the course of trial. The 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 such a statement is considered to be confessional only, when it is self-incriminatory, can be said to be impermissible in law.

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, seeking further and better particulars. Partial statement of the appellant has already been recorded. However, as observed, the 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 of accumulating the assets disproportionate to his known sources of income. However, if during the enquiry at preregistration 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)

The appeal is accordingly dismissed.

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Shantha Gopika R