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Supreme Court of India
Charansingh vs The State Of Maharashtra on 24 March, 2021Author: Hon’Ble Dr. Chandrachud
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.363 OF 2021
(Arising from S.L.P.(Criminal) No. 6764 of 2020)
Charansingh …Appellant
Vs.
State of Maharashtra and others …Respondents
JUDGMENT
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 25.11.2020 passed by the High Court of Judicature at
Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 226 of
2020, by which the High Court has dismissed the said writ petition
challenging notice dated 04.03.2020 issued by the Police Inspector, Anti-
Corruption Bureau, Nagpur, calling upon the appellant to personally
remain present before the investigating officer of the Anti-corruption
Bureau, Nagpur to give his statement in an ‘open enquiry’ in respect of
the property owned by him along with the information on the points
Signature Not Verified
stated in the said notice, the appellant has preferred the present appeal.
Digitally signed by
Chetan Kumar
Date: 2021.03.24
16:38:50 IST
Reason:
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2. That a complaint was received against the appellant in the office of
the Director General, Anti-corruption Bureau, Maharashtra State,
Mumbai on 7.2.2018, wherein various allegations have been made
against the appellant and his brothers with regard to accumulating the
assets disproportionate to his known sources of income. It appears that
at that time the appellant was a Member and President of Municipal
Council, Katol, District Nagpur. That in connection with the said
complaint, 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.
3. Feeling aggrieved and dissatisfied with the said notice dated
04.03.2020 issued by the Police Inspector, Anti-Corruption Bureau,
Nagpur calling upon the appellant to personally remain present before
the investigating officer of the Anti-corruption Bureau, Nagpur to give his
statement in an ‘open enquiry’ in respect of the property owned by him
along with the information on the points stated in the said notice, the
appellant herein preferred Criminal Writ Petition No. 226 of 2020 before
the High Court.
3.1 It was submitted on behalf of the appellant that the Police
Inspector, Anti-Corruption Bureau, Nagpur has no power to issue the
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said notice. It was also submitted that the said notice was issued in a
purported exercise of power under Section 160 Cr.P.C., however,
Section 160 Cr.P.C. shall not be applicable at all as the appellant is not a
witness in the case. It was also the case on behalf of the appellant that
there is no statutory provision which would compel any body to give
statement to the police. It was also submitted that there is no FIR
against the appellant.
3.2 On the other hand, it was the case on behalf of the State that the
appellant has been called upon to give his statement in an ‘open enquiry’
which is in the nature of preliminary enquiry. It was the complaint
received by the Anti-Corruption Bureau, Nagpur regarding amassing of
huge properties by the appellant. It was submitted that such a
preliminary enquiry is permissible, as held by this Court in the case of
Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1. Heavy
reliance was placed upon paragraphs 89, and 120 of the said decision.
After following the decision of this Court in the case of Lalita Kumari
(supra), the High Court has observed that a preliminary enquiry in order
to verify the correctness of the allegations and also to elicit some
information/material which may be relevant for deciding the question
regarding commission or non-commission of cognizable offence would
be permissible. Thereafter, the High Court has further observed that as
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the notice has been issued only for facilitating the purpose of preliminary
enquiry, it cannot be said to be bad in law. The High Court has further
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. However, the High Court has further
observed that not responding to such a notice, may be at the peril of the
noticee himself for the reason that the officer of the Anti-Corruption
Bureau may draw some adverse inference against the person not co-
operating with the preliminary enquiry. For the aforesaid, the High Court
took into consideration Condition No. 16 of the State Anti-Corruption
Bureau Manual. By observing the above, the High Court, by the
impugned judgment and order has dismissed the said writ petition, which
has given rise to the present appeal.
4. Shri Subodh Dharmadhikari, learned Senior Advocate appearing
on behalf of the appellant has vehemently submitted that notice dated
04.03.2020 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.
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4.1 It is submitted that the said notice has been issued in purported
exercise of power under Section 160 Cr.P.C. However, as the appellant
cannot be said to be a witness in the case, Section 160 Cr.P.C. shall not
be applicable at all. It is submitted that therefore notice dated 4.3.2020
is beyond the scope and ambit of Section 160 Cr.P.C.
4.2 It is further submitted that while dismissing the writ petition, the
High Court has materially erred in relying upon the decision of this Court
in the case of Lalita Kumari (supra).
4.3 It is further submitted that the High Court ought to have
appreciated that such a notice calling upon the appellant to give the
statement and more particularly on the points mentioned in the said
notice shall be hit by Article 20(3) and 21 of the Constitution of India. It
is further submitted that as such notice dated 4.3.2020 is for roving and
fishing enquiry which is not permissible under the law and as such it has
no statutory backing.
4.4 It is further submitted that the High Court has failed to appreciate
that notice dated 4.3.2020 is a clear example of political vendetta and
actuated by malice to harass the political opponent by the ruling party.
4.5 It is further submitted by the learned counsel appearing on behalf
of the appellant that as such the reliance placed upon Condition No. 16
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of the State Anti-Corruption Bureau Manual has no statutory force even
as observed and held by this Court in the case of Lalita Kumari (supra).
4.6 Making the above submissions, it is prayed 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 dated 4.3.2020
issued by the Anti-Corruption Bureau, Nagpur.
5. While opposing the present appeal, Shri Raja Thakare, learned
Senior Advocate has vehemently submitted that the notice issued by the
Police Inspector, Anti-Corruption Bureau, Nagpur is absolutely in
consonance with the ACB Manual 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 (supra).
5.1 It is submitted that a complaint was received in the office of the
Director General, Anti-Corruption Bureau, Maharashtra State, Mumbai,
wherein various allegations have been made against the appellant with
regard to accumulating the assets disproportionate to his known sources
of income. That 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. Accordingly, a discrete enquiry
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was conducted and on 27.02.2020, a report was submitted to the
Superintendent of Police, Anti-Corruption Bureau, Nagpur. It is
submitted that after scrutiny of the said report, the Superintendent of
Police, Anti-Corruption Bureau, Nagpur forwarded the same to the
Director General of Police, Anti-Corruption Bureau, Maharashtra,
Mumbai. That the Director General of Police, Anti-Corruption Bureau,
Maharashtra vide his letter dated 28.02.2020 directed the
Superintendent of Police, Anti-Corruption Bureau, Nagpur who in turn
directed the Police Inspector, Anti-Corruption Bureau, Nagpur to conduct
an ‘open enquiry’.
5.2 It is submitted that the said ‘open enquiry’ is to find out if an
offence under Section 13(e) of the Prevention of Corruption Act is
disclosed. It is submitted that Section 13(e) of the PC Act makes it
apparent that the person against whom a complaint is received has to
satisfy the investigating agency whether his assets are in consonance
with his known sources of income and accountable. The information
regarding assets may be provided by the source informant or can be
detected during the discrete enquiry, however, the sources of his income
would be within exclusive knowledge of the person against whom the
complaint or information is received. It is submitted that therefore the
‘open enquiry’ is warranted before the registration of an offence. It is
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submitted that accordingly the Superintendent of Police, Anti-Corruption
Bureau, Nagpur directed the Police Inspector, Anti-Corruption Bureau,
Nagpur to conduct an ‘open enquiry’ with regard to the allegations
levelled in the complaint.
5.3 It is submitted that the notice has been issued as per the principals
of natural justice to facilitate the appellant to clarify regarding his assets
and known sources of income, which would enable the investigating
officer to ascertain whether cognizable offence is disclosed or not. It is
submitted that however Section 160 Cr.P.C. has been inadvertently
mentioned in the said notice.
5.4 It is further submitted that, as such, 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. It is submitted that, as such, the
appellant did join the ‘open enquiry’ and ask for time to collect details
and produce the same. It is submitted that even on 7.1.2021, the
appellant attended the office of the Anti-Corruption Bureau, Nagpur with
relevant documents of some of the properties owned by him and his
partial statement was recorded and his statement remained incomplete.
But the appellant avoided to give details of his assets, liabilities and
prominent expenditures and therefore no conclusion could be drawn. It
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is submitted therefore that once the appellant having presented himself
before the investigating authority on 7.1.2021 and his partial statement
having been recorded, the issue whether the said notice can compel the
appellant to appear in person before the officers of the Anti-Corruption
Bureau, Nagpur no longer survives for consideration by this Court.
5.5 It is submitted that, in fact, 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.
5.6 It is submitted that in the discrete enquiry, the investigating
authority has found, prima facie, substance in the allegations with regard
to the complaint received and therefore it was decided to conduct an
‘open enquiry’. It is submitted that the decision with regard to discrete
enquiry as well as an open enquiry with regard to allegations against the
appellant was taken as per the provisions of the Manual of the Anti-
Corruption Bureau, Maharashtra. Heavy reliance is placed on Chapter
IV of the Anti-Corruption Manual Rules, which provides for conducting
the investigation including discrete enquiry and ‘open enquiry’.
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5.7 It is further submitted that the enquiry is being conducted to verify
the truthfulness of the allegations with regard to the accumulation of
assets disproportionate to the known sources of income of the appellant.
Unless the relevant property details of the appellant are made available
to the authorities, the investigating authority will not be able to ascertain
as to whether the assets of the appellants are disproportionate to his
known sources of income or not. The very nature of the enquiry in
respect of offence under Section 13(e) of the PC Act presupposes that it
is the person against whom the allegations are made has to explain the
details of his property qua his known sources of income. It is submitted
that therefore the enquiry initiated should reach to its logical conclusion.
It is submitted that at the time of culmination of the inquiry, a decision will
be taken on merits and on the basis of the evidence/material collected
during the course of ‘open enquiry’, it will be considered whether a
cognizable offence is made out or not. It is submitted that if no
substance is found during the ‘open enquiry’, the Anti-Corruption Bureau,
Nagpur may close the enquiry without any further action.
5.8 It is further submitted that calling upon the appellant to disclose his
properties, assets etc. cannot be said to be in violation of Articles 20(3)
and 21 of the Constitution of India, as alleged. It is submitted to invoke
the constitutional right under Article 20(3), an accusation against him
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must exist. It is submitted that as on date no FIR has been registered
against the appellant and the investigating authorities are only
conducting the preliminary enquiry. It is submitted that it cannot be said
that the said notice seeks to make a roving inquiry with regard to the
assets and personal details of the appellant or that it is vague.
5.9 Making the above submissions, it is prayed to dismiss the present
appeal.
6. We have heard the learned counsel for the respective parties at
length.
At the outset, it is required to be noted that what was challenged
before the High Court was notice issued by the Police Inspector, Anti-
Corruption Bureau, Nagpur, by which the appellant has been called upon
to give his statement in respect of the properties owned by him, for the
purpose of enquiring the complaint against him, alleging accumulating
the assets disproportionate to his known sources of income which, as
such, was/is at pre-FIR stage. By the aforesaid notice dated 4.3.2020,
the appellant has been called upon to carry along with the information on
the following aspects for the purpose of recording his statement:
1) Record in respect of ancestral and self-acquired property in your
name, for example, Registered Deed, Construction Licence,
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Receipts relating to tax, Sale Deed of Agricultural Land, 7/12
Extract and Mutation Entries, etc.
2) Details of ancestral and self-acquired gold coins and jewellery,
likewise sale and purchase of vehicle.
3) Passbooks, Certificates, L.I.C., Shares/Debentures Certificates,
etc. in respect of investments at bank, insurance and others in
your name and in the name of your family members.
4) Details of documentary evidence in respect of loan borrowed by
you.
5) Proofs and income tax return in respect of your income other
than your remuneration.
6) Details of expenditure incurred by you in respect of pilgrimages,
functions, hospitals, foreign tours, etc.
7) Information regarding remuneration and allowances received by
you.
The High Court, by the impugned judgment and order, has refused
to quash the said notice mainly relying upon the decision of this Court in
the case of Lalita Kumari (supra).
7. Therefore, the short question which is posed for the consideration
of this Court is, whether such an enquiry at pre-FIR stage would be legal
and to what extent such an enquiry is permissible?
7.1 While answering the aforesaid two questions and permissibility of
the enquiry at pre-FIR stage, it is required to be noted that on the basis
of the complaint against him, the appellant is facing various allegations
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with regard to accumulating the assets disproportionate to his known
sources of income, when the appellant was a member and the President
of the Municipal Council, Katol, District Nagpur – a public servant. At
that stage and while considering the veracity of the allegation of
accumulating the assets disproportionate to his known sources of
income, the investigating agency has thought it fit to hold an ‘open
enquiry’ and during the course of such ‘open enquiry’ the appellant has
been called upon to make his statement along with the information on
the points, referred to hereinabove. Whether, such an enquiry, which
can be said to be a preliminary enquiry, is permissible under the
Maharashtra State Anti-Corruption Manual shall be dealt with and
considered hereinbelow.
8. However, whether in a case of a 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/or it is desirable or not, if any decision is
required, the same is governed by the decision of this Court in the case
of Lalita Kumari (supra).
8.1 While considering the larger question, whether police is duty
bound to register an FIR and/or it is mandatory for registration of FIR on
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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 (supra) 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:
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(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.
The aforesaid are only illustrations and not exhaustive of all conditions
which may warrant preliminary inquiry.
In paragraph 120, this Court concluded and issued directions as
under:
“120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the
Code, if the information discloses commission of a cognizable offence and
no preliminary inquiry is permissible in such a situation.
120.2. 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.
120.3. 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.
120.4. The police officer cannot avoid his duty of registering offence if
cognizable offence is disclosed. Action must be taken against erring
officers who do not register the FIR if information received by him
discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or
otherwise of the information received but only to ascertain whether the
information reveals any cognizable offence.
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120.6. As to what type and in which cases preliminary inquiry is to be
conducted will depend on the facts and circumstances of each case. The
category of cases in which preliminary inquiry 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.
The aforesaid are only illustrations and not exhaustive of all conditions
which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the
complainant, a preliminary inquiry should be made time-bound and in any
case it should not exceed 7 days. The fact of such delay and the causes of
it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the record of all
information received in a police station, we direct that all information
relating to cognizable offences, whether resulting in registration of FIR or
leading to an inquiry, must be mandatorily and meticulously reflected in the
said diary and the decision to conduct a preliminary inquiry must also be
reflected, as mentioned above.”
9. In the context of offences relating to corruption, in paragraph 117
in the case of Lalita Kumari (supra), this Court also took note of the
decision of this Court in the case of P. Sirajuddin v. State of Madras
(1970) 1 SCC 595 in which case this Court expressed the need for a
preliminary enquiry before proceeding against public servants.
While expressing the need for a preliminary enquiry before
proceeding against public servants who are charged with the allegation
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of corruption, it is observed in the case of P. Sirajuddin (supra) 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”.
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9.1 Thus, 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. Therefore, such a preliminary
enquiry would be in the interest of the alleged accused also against
whom the complaint is made.
9.2 Even as held by this Court in the case of Superintendent of Police,
CBI v. Tapan Kumar Singh (2003) 6 SCC 175, 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
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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 (supra) and considering
the observations by this Court in the case of Lalita Kumari (supra) 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
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authority and/or power at all to conduct such an enquiry at pre-
registration of FIR stage.
10. 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
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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:
(a) 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.
(b) The contents of the application or information should be scrutinized
carefully and various allegations contained therein be noted seriatum.
(c) 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.
(d) 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.
(e) The statement of the applicant should be recorded nothing therein all the
circumstances within his knowledge with regard to the allegations.
(f) 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.
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(g) All available documentary evidence in support of the allegation should be
collected.
(h) 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.
(i) The statements of all persons cited in defence should be recorded and
the relevant documentary evidence collected.
(j) 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.
(k) The papers of enquiry, with the final report, should be submitted to the
Director.
(l) 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.
10.1 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
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the allegations of corrupt practice. However, as observed hereinabove,
such an enquiry would be conducted to ascertain whether a cognizable
offence is disclosed or not. As observed hereinabove, 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.
11. However, 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 to hereinabove for the purpose of recording
his statement. The information sought on the aforesaid points is having
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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.
12. 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
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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, as observed hereinabove, 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.
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13. In view of the above and for the reasons stated above, we see no
reason to interfere with the impugned judgment and order passed by the
High Court and we dismiss the appeal with the above observations and
clarifications that the statement of the appellant on the points mentioned
in the impugned notice would be only to satisfy whether a cognizable
offence is disclosed or not and so as to enable the appellant to clarify the
allegations made against him with respect to accumulation of assets
disproportionate to his known sources of income and the same shall not
be treated as a confessional statement.
14. Appeal is accordingly dismissed with the above
clarifications/observations.
…..…………………………………J.
[Dr. Dhananjaya Y. Chandrachud]
New Delhi; ………………………………………J.
March 24, 2021. [M.R. Shah]
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