THE STATE OF TELANGANA versus SRI MANAGIPET @ MANGIPET SARVESHWAR REDDY on 6 December 2019

716

SUPREME COURT REPORTS

[2019] 14 S.C.R.

A

THE STATE OF TELANGANA

v.

SRI MANAGIPET @ MANGIPET SARVESHWAR REDDY

(Criminal Appeal No. 1662 of 2019)

BDECEMBER 06, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Code of Criminal Procedure, 1973:

s.482 – Petition under – For quashing the charge-sheetCalleging offences under Prevention of Corruption Act, 1988 – HighCourt partly allowed the petition holding that there was noauthorization to register the crime and that the informant couldnot be the investigating officer – However, the Court did not acceptthe pleas of the accused viz. absence of preliminary inquiry beforeregistration of crime; absence of sanction before prosecution; andDdelay in completion of the investigation – Appeal to Supreme Courtby the State as well as the accused – Held: The authorizing Officerhad discharged his duties in exercise of the powers confirmed bythe State Government – The authorization in favour of theInvestigating Officer was issued by the authorizing officer whileEperforming his duties in public interest – Therefore suchauthorization is valid and binding as if it was an act of an officerde jure – The High Court had no jurisdiction to decide the natureof employment of authorising Officer while deciding a petitionu/s.482 – In the facts of the present case preliminary inquiry wasnot required and sanction could be produced during the courseFof trial – Matter remitted to trial court for further proceedings.

Prevention of Corruption Act, 1988:

s.17 – Non-compliance – Effect of – Held: If an investigationis not conducted by a police officer of requisite rank and statusGrequired u/s. 17, such lapse would be an irregularity – If suchirregularity does not result in causing prejudice, conviction willnot be vitiated on this ground – Investigation.

Constitutionalism:

Executive powers of State – Scope of – Held: ExecutiveHpowers of State is coterminus with the legislative power of the State Legislature – State Executive has power to make regulations andissue Government Orders in respect of a subject on which the StateLegislature has jurisdiction to make law.

Inquiry:

Preliminary inquiry – Requirement of – Before lodging FIR– Held: Scope and ambit of preliminary inquiry before lodging anFIR, would depend upon the facts of each case – Objective ofsuch inquiry is only to ensure that criminal investigation does notinitiate on frivolous and untenable complaint – In the present case,since the relevant information was available in respect of prima facieallegations disclosing a cognizable offence, conducting ofpreliminary inquiry was not required.

Dismissing the appeal of the accused, while allowing thatof the State, the Court HELD: 1.1 Article 310 of the Constitution of Indiacontemplates that except as expressly provided, every personwho is a member of a defence service or of a civil service ofthe Union or of an all-India service or holds any post connectedwith defence or any civil post under the Union, holds office atthe 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 oneyear by the State Government in exercise of powers conferredunder Article 162 of the Constitution of India. There is noprohibition in any of the service rules that there cannot be anyre-employment of a person who was once in a civil service ofeither the Center or the State. [Para 10] [727-D-F]

1.2 Entry 2 of List II of the Seventh Schedule of theConstitution 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 legislativecompetence of the State and the re-employment of a retiredpersonnel who was a member of Indian Police Service, fallswithin the executive power of the State. As a re-employed officer,he was holding a civil post as his salary was being paid from theState Exchequer. He was discharging duties and responsibilitiesin the Anti-Corruption Bureau. [Para 11] [727-G-H]

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BC

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A

A1.3 The executive power of the State is coterminous withthe legislative power of the State Legislature i.e. if the StateLegislature has jurisdiction to make law with respect to a subject,the State executive can make regulations and issue Governmentorders with respect to it. The executive power of the StateGovernment cannot be circumscribed if it does not go againstBthe 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 SCC214 : [2011] 5 SCR 254 ; Bishambhar Dayal ChandraMohan & Ors. v. State of Uttar Pradesh & Ors. (1982)C1 SCC 39 : [1982] 1 SCR 1137 – relied on.

1.4 ‘K’ was re-employed initially for a period of one yearafter his retirement. He was not being recruited for holding acivil post for the first time which may warrant compliance ofrigour of Article 16 of the Constitution. He had crossed allDbridges, when he was appointed and discharged duties beforeattaining the age of superannuation. Such re-employment by theState is in exercise of the powers conferred under Article 162of the Constitution of India. Such executive powers of the Statedo not contravene any other statutory provisions; therefore, re-Eemployment in this regard is supplementing the statutory rulesand regulations and not supplanting them. Therefore, ‘K’ hasdischarged the duties of Joint Director in the Anti-CorruptionBureau in exercise of the powers conferred by the StateGovernment. [Para 14] [729-D-E]

F1.5 Further, ‘K’, whilst discharging the duties of JointDirector in the Anti-Corruption Bureau were within the scopeof the assumed official authority in public interest and not forhis own benefit. Therefore, acts undertaken in this regard bythe officer will be taken to be valid. The authorisation in favourof ‘S’ was issued when ‘K’ was performing his duties in publicGinterest and not for his own benefit. Therefore, suchauthorisation is valid and binding as if it was an act of an officerde 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 ; PushpadeviHM. 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 SCC18 : [2016] 7 SCR 223 – relied on.

Pulin Behari Das v. King Emperor (1911) SCC OnLineCal 159 ; P.S. Menonv. State of Kerala AIR 1970 Ker165 ; 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 quashingof proceedings under Section 482 of Cr.P.C could not havecommented upon the nature of employment of ‘K’, as such aquestion does not fall within the jurisdiction of the High Courtwhilst deciding the aforementioned petition. [Para 22] [735-B-C]

1.7 ‘K’ had authorised ‘S’ and the final report had beenfiled after the investigation conducted by the latter, in terms ofclause (c) of Section 17 of the Prevention of Corruption Act. Inthis regard, it cannot be said that the investigation was notconducted in a manner contemplated under law. Thus, ‘S’ wasan authorized Officer, competent to investigate and file a reportfor the offences under the Act including of an offence underSection 13(1)(e) of the Act. [Para 23] [735-C-D]

1.8 The finding recorded by the High Court that theinformant cannot be the investigating officer, ‘S’ being both theinformant and the initiator of the investigations is based on*Mohan Lal case. In **Varinder Kumar case, *Mohan Lal casewas held to have prospective effect hence, will not be applicablein 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 theproceedings against the Accused Officer are not sustainable andare consequently, set aside. Accordingly, the appeal filed by theState is allowed and the matter is remitted back to the trial courtfor further proceedings in accordance with law. [Para 26] [736-B]

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AUnion Public Service Commissioner v. Girish JayantiLal Vaghela & Ors. (2006) 2 SCC 482 : [2006] 1 SCR1006 – distinguished.

2.1 The scope and ambit of a preliminary inquiry beingnecessary before lodging an FIR, would depend upon the factsBof each case. There is no set format or manner in which apreliminary inquiry is to be conducted. The objective of the sameis only to ensure that a criminal investigation process is notinitiated on a frivolous and untenable complaint. [Para 32] [739- C]

C2.2 In the present case, the FIR itself shows that theinformation collected was in respect of disproportionate assetsof the Accused Officer. The purpose of a preliminary inquiry isto screen wholly frivolous and motivated complaints, infurtherance of acting fairly and objectively. Herein, relevantinformation was available with the informant in respect of primaDfacie allegations disclosing a cognizable offence. Therefore,once the officer recording the FIR is satisfied with suchdisclosure, he can proceed against the accused even withoutconducting any inquiry or by any other manner on the basis ofthe credible information received by him. It cannot be said thatthe FIR is liable to be quashed for the reason that theEpreliminary inquiry was not conducted. The same can only bedone if upon a reading of the entirety of an FIR, no offence isdisclosed. [Para 33] [739-D-F]

State of Haryana v. Bhajan Lal (1992) 1 Supp. SCC335 : [1990] 3 Suppl. SCR 259 – relied on.

F

2.3 Therefore, the preliminary inquiry warranted in *LalitaKumari case is not required to be mandatorily conducted in allcorruption cases. The type of preliminary inquiry to beconducted will depend on the facts and circumstances of eachcase. There are no fixed parameters on which such inquiry canGbe said to be conducted. Therefore, any formal and informalcollection of information disclosing a cognizable offence to thesatisfaction of the person recording the FIR is sufficient. [Para34] [740-A-B]

Lalita Kumari v. Government of Uttar Pradesh & Ors.H(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.

A

3.1 There is also no merit in the argument that there hasbeen no sanction before the filing of the report. The sanctioncan be produced by the prosecution during the course of trial,so the same may not be necessary after retirement of theAccused Officer. The question as to whether a sanction isnecessary to prosecute the Accused Officer, a retired publicservant, is a question which can be examined during the courseof the trial. [Paras 35 and 36] [740-C-E-F]

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C

K. Kalimuthu v. State by DSP (2005) 4 SCC 512:[2005] 3 SCR 1 – relied on.

B

C

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 officerof the requisite rank and status required under Section 17 ofthe Act, such lapse would be an irregularity, however unless suchirregularity results in causing prejudice, conviction will not bevitiated or be bad in law. Therefore, the lack of sanction wasrightly found not to be a ground for quashing of the proceedings.[Para 36] [740-F-G]

D

E

Vinod Kumar Garg v. State (Government of NationalCapital Territory of Delhi) [2020] 2 SCC 88 – reliedon.

4. It is not correct to contend that amended provisions ofthe Prevention of Corruption Act as amended by Act XVI of 2018would be applicable in the present case, as the Amending ActFcame into force before filing of the charge sheet. In the presentcase, the FIR was registered on 9[th] November, 2011 much beforethe Act was amended in the year 2018. Whether any offencehas been committed or not has to be examined in the light ofthe provisions of the statute as it existed prior to the amendmentGcarried out on 26[th] July, 2018. [Para 37] [741-B-C]

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1662 of 2019.

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From the Judgment and Order dated 24.12.2018 of the HighCourt of Judicature at Hyderabad for the State of Telangana and theState of Andhra Pradesh in Criminal Petition No. 12485 of 2018

With

Criminal Appeal No. 1663 of 2019.F

Gurukrishna Kumar, Sr. Adv., Sridhar Potaraju, P. AnanthaNageshwar Rao, Ms. Shweta Parihar, Ms. Shiwani Tushir, Ms. G.Ushasri, T. Vishnu Menon, Ms. Bina Madhavan, S. Udaya Kumar Sagar,Ms. Swati Bhardwaj, Advs. for the appearing parties.

GThe Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The order dated 24[th] December, 2018 passed by the HighCourt of Judicature at Hyderabad is the subject matter of challenge inthe present appeals, one by the State and the other by the AccusedHOfficer.

2. The High Court partly allowed the petition filed by the AccusedOfficer under Section 482 of the Code of Criminal Procedure, 1973[1]qua the proceedings arising out of Crime No. 28/ACB-CIU-HYD/2011dated 9[th] November, 2011.

3. Such FIR was registered on the basis of the statement givenby Ch. Sudhakar, Deputy Superintendent of Police[2] at about 10 am.The FIR reads as under:

“On receipt of credible information that Sri. Managipet @Mangipet Sarveshwar Reddy S/o. Late Narsimha Reddy, Age51 years, Occ: OSD, Rang Reddy District, Vikarabad R/o FlatNo. 401, Venkatadri Apartments, Behind HPCL Petrol Pump,Gachibowli, Hyderabad is a native of Chilkatonipally (V) Veltoor(Post), Wanaparthy Tq., Mahaboobnagar District. The S.O.joined Govt. service on 19-09-1985 as Sub Inspector of Policeand promoted as Inspector of Police on 04-04-1995 and Dy.Supdt. of Police, in the year 2007. He worked as SI atRayadurgam, Hayathnagar, Malkajigiri, as Circle Inspector atHuzurnagar of Nalgonda District Narsingi, Uppal, Rajendranagarof Cyberabad Commissionerate, R.R. District as ACP.,Rajendranagar for about 4 years and presently working as OSD,Ranga Reddy District, Vikarabad.

During the period of his service he acquired Six MultistoriedBuildings, One Multistoried commercial complex, 27 plots and 26Acres of land at Hyderabad, Ranga Reddy and MahboobnagarDistricts and one Scorpio car, one Hyundai Verna car and MarutiCar, all worth Rs.3,55,61,500/-.

The probable income of the A.O. and his family members fromall their known sources of income when calculated roughly wouldbe Rs.60,00,000/-. The probable expenditure of the accusedofficer including household expenditure and expenditure onchildren education is tentatively estimated at Rs.23,00,000/-.

The likely savings of the accused officer is Rs.37,00,000/- i.e.,the probable income of Rs. 60,00,000 - minus the probableexpenditure of Rs.23,00,000/-.

1 for short, ‘Code’

2 for short, ‘DSP’

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AAs against the likely savings of Rs.37,00,000/- theAccused Officer has acquired assets approximately worthRs.3,55,61,500/-. Thus, the A.O. is in possession of assets worthRs.3,18,61,500/- which are disproportionate to the known sourcesof his income for which he cannot satisfactorily account for andthereby committed the offence punishable U/s 13(2) r/w 13(1)(e)Bof P.C. Act 1988.

A

Permission has been obtained from the competent authority toregister a case against the above official U/s 13(2) r/w 13(1)(e)of the Prevention of Corruption Act, 1988.

Hence, the FIR.”C

4. A charge sheet was filed on 9[th] October, 2017 on completionof the investigations. As per the Report, the Accused Officer was saidto be in possession of assets worth Rs.3,18,61,500/- alleged to bedisproportionate to his known sources of income. The total worth ofthe property against his savings of Rs.37 lakhs was found to beDapproximately Rs.3,55,61,500/-. During the investigations, as many as114 witnesses were examined. Ch. Sudhakar, DSP, CIU, ACB,Hyderabad and five more investigating officers conducted theinvestigations and prepared the final report.

5. The High Court in a petition for quashing of the charge sheet,Eheld that there was no authorization to register the crime and that theinformant cannot be the investigating officer and, thus, quashed thesame. The State is aggrieved against the said two findings whereas,the Accused Officer has challenged the findings of the High Court notaccepting the grounds pressed by him in seeking the quashing of thecharge sheet - that there is no preliminary inquiry before the registrationFof the crime; that there is no sanction and that there is a delay in thecompletion of the investigation which has prejudiced the rights of theAccused Officer.

6. Ms. Bina Madhavan, learned counsel for the State submittedthat the Accused Officer joined as Sub Inspector on 19[th] September,G1985 and was promoted as Inspector on 4[th] April, 1997. He was furtherpromoted as DSP in the year 2007. In pursuance of the FIR filed, adraft final report was prepared on 30[th] April, 2015 but the same wassubmitted on 9[th] October, 2017 after the Accused Officer retired on31[st] May, 2017. Section 17 of the Prevention of Corruption Act, 1988[3]H3 for short, ‘Act’

pertains to investigation into cases under the Act. A Police officer notbelow the rank of Inspector, authorized by the State Government bygeneral or special order, may also investigate any such offence. Anoffence under clause (e) of sub-section (1) of Section 13 of the Actcannot be investigated without an order of the Police Officer not belowthe rank of Superintendent of Police. Section 17 of the Act reads asunder:

“17. Persons authorised to investigate.—Notwithstanding anythingcontained in the Code of Criminal Procedure, 1973 (2 of 1974),no police officer below the rank,—

c) elsewhere, of a Deputy Superintendent of Police or apolice officer of equivalent rank, shall investigate anyoffence punishable under this Act without the order of aMetropolitan Magistrate or a Magistrate of the first class,as the case may be, or make any arrest therefor withouta warrant:

Provided that if a police officer not below the rank of an Inspectorof Police is authorised by the State Government in this behalfby general or special order, he may also investigate any suchoffence without the order of a Metropolitan Magistrate or aMagistrate of the first class, as the case may be, or make arresttherefor without a warrant:

Provided further that an offence referred to in clause (e) of sub-section (1) of section 13 shall not be investigated without the orderof a police officer not below the rank of a Superintendent ofPolice.”

7. Learned counsel for the State referred to Government OrderNo. 3168 dated 24[th] May, 2008 re-employing Sri K. Sampath Kumar,Joint Director, Anti-Corruption Bureau as Officer on Special Duty afterhis superannuation on 31[st] May, 2008 for a period of one year. Suchorder of re-employment was renewed on 5[th] March, 2009; 13[th] May,2010 and on 30[th] May, 2011, each extending the term of re-employmentby one year. It was on 9[th] November, 2011, the Joint Director, CIU &SES, Anti-Corruption Bureau authorized Ch. Sudhakar, DSP to register A

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Aa case against the Accused Officer under Section 13(2) read withSection 13(1)(e) of the Act and inspect any premises, bankers booksof the Accused Officer or of any other person concerned with theaffairs of the Accused Officer and take or cause to be taken certifiedcopies of the relevant entries therefrom for the purpose of investigation.It is in pursuance of such authorization that the FIR was lodged,Bpremises were searched and the Accused Officer was arrested.

8. The High Court relied upon the judgment reported as UnionPublic Service Commissioner v. Girish Jayanti Lal Vaghela & Ors.[4]to hold that the statutory rules do not permit to extend the age ofsuperannuation without compliance of Article 16 of the Constitution ofCIndia. A person who was appointed for a short period of six monthsor till availability of a regular selectee, whichever is earlier is practicallyappointed on a contract basis and could not be called a governmentservant. The High Court returned the following findings:

“21. It is neither pleaded nor is there any material to show thatDthe appointment of Respondent 1 had been made after issuingpublic advertisement or the body authorised under the relevantrules governing the conditions of service of Drugs Inspectors inthe Union Territory of Daman and Diu had selected him. Hiscontractual appointment for six months was dehors the rules. TheEappointment was not made in a manner which could evenremotely be said to be compliant with Article 16 of theConstitution. The appointment being purely contractual, the stageof acquiring the status of a government servant had not arrived.While working as a contractual employee Respondent 1 was notFgoverned by the relevant service rules applicable to DrugsInspector. He did not enjoy the privilege of availing casual orearned leave. He was not entitled to avail the benefit of generalprovident fund nor was he entitled to any pension which arenormal incidents of a government service. Similarly, he couldneither be placed under suspension entitling him to a suspensionGallowance nor could he be transferred. Some of the minorpenalties which can be inflicted on a government servant whilehe continues to be in government service could not be imposedupon him nor was he entitled to any protection under Article 311

of the Constitution. In view of these features it is not possible tohold that Respondent 1 was a government servant.”

9. We find glaring illegality in the line of reasoning and thefindings recorded by the High Court. Girish Jayanti Lal Vaghela wasa case where Shri Vaghela was appointed on a short term contractbasis, on a fixed salary till a candidate was selected by the Union PublicService Commission on a regular basis. The advertisement to fill upthe post on regular basis contemplated relaxation of five years in agefor government servants. He claimed relaxation in age being agovernment servant for appointment on regular basis. It was held thatit was a contract which governed his terms of service and not the rulesframed under the proviso to Article 309 of the Constitution of India inas much as he was not appointed in accordance with the Rules and,thus, was not eligible for any relaxation in upper age for appointmenton a regular basis in a post advertised by Union Public ServiceCommission.

10. Article 310 of the Constitution contemplates that except asexpressly provided, every person who is a member of a defence serviceor of a civil service of the Union or of an all-India service or holds anypost connected with defence or any civil post under the Union, holdsoffice at the pleasure of the President. In respect of the State Services,however, he or she holds office at the pleasure of the Governor. Inthe present case, Sri K. Sampath Kumar was re-employed for a periodof one year by the State Government in exercise of powers conferredunder Article 162 of the Constitution of India. There is no prohibitionin any of the service rules that there cannot be any re-employment ofa person who was once in a civil service of either the Center or theState.

11. Entry 2 of List II of the State List is the Police (includingrailway and village police) subject to the provisions of Entry 2A of ListI. Therefore, various facets of Policing in the State fall within thelegislative competence of the State and the re-employment of a retiredpersonnel who was a member of Indian Police Service, falls within theexecutive power of the State. As a re-employed officer, he was holdinga civil post as his salary was being paid from the State Exchequer. Hewas discharging duties and responsibilities in the Anti-Corruption Bureau.

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A12. In P.H. Paul Manoj Pandian v. P. Veldurai[5], it has beenheld that the executive power of the State is coterminous with thelegislative power of the State Legislature i.e. if the State Legislaturehas jurisdiction to make law with respect to a subject, the State executivecan make regulations and issue government orders with respect to it.This Court held as under:B

A

“48. The powers of the executive are not limited merely to thecarrying out of the laws. In a welfare State the functions of theexecutive are ever widening, which cover within their ambitvarious aspects of social and economic activities. Therefore, theCexecutive exercises power to fill gaps by issuing variousdepartmental orders. The executive power of the State iscoterminous with the legislative power of the State Legislature.In other words, if the State Legislature has jurisdiction to makelaw with respect to a subject, the State executive can makeregulations and issue government orders with respect to it,Dsubject, however, to the constitutional limitations. Suchadministrative rules and/or orders shall be inoperative if thelegislature has enacted a law with respect to the subject. Thus,the High Court was not justified in brushing aside the GovernmentOrder dated 16-11-1951 on the ground that it containedEadministrative instructions.”

13. In Bishambhar Dayal Chandra Mohan & Ors. v. Stateof Uttar Pradesh & Ors.[6], it was held that the executive power ofthe State Government cannot be circumscribed if it does not go againstthe provisions of the Constitution or any law. The Court held as under:F

“20. …………….. In Ram Jawaya Kapur v. State of Punjab[AIR 1955 SC 549 : (1955) 2 SCR 225 : 1955 SCJ 504]Mukherjea, C.J., dealt with the scope of Articles 73 and 162 ofthe Constitution. The learned Chief Justice observed that neitherof the two Articles contains any definition as to what theGexecutive function is or gives an exhaustive enumeration of theactivities which would legitimately come within its scope. It wasobserved: “Ordinarily the executive power connotes the residueof governmental functions that remain after legislative and judicial

functions are taken away.” It is neither necessary nor possibleto give an exhaustive enumeration of the kinds and categoriesof executive functions which may comprise both the formulationof the policy as well as its execution. In other words, the Statein exercise of its executive power is charged with the duty andthe responsibility of carrying on the general administration of theState. So long as the State Government does not go against theprovisions of the Constitution or any law, the width and amplitudeof its executive power cannot be circumscribed. If there is noenactment covering a particular aspect, certainly the Governmentcan carry on the administration by issuing administrativedirections or instructions, until the legislature makes a law in thatbehalf. Otherwise, the administration would come to a standstill.”

14. Sri K. Sampath Kumar was re-employed initially for a periodof one year after his retirement. He was not being recruited for holdinga civil post for the first time which may warrant compliance of rigourof Article 16 of the Constitution. He had crossed all bridges, when hewas appointed and discharged duties before attaining the age ofsuperannuation. Such re-employment by the State is in exercise of thepowers conferred under Article 162 of the Constitution of India. Suchexecutive powers of the State do not contravene any other statutoryprovisions; therefore, re-employment in this regard is supplementing thestatutory rules and regulations and not supplanting them. Therefore, SriK. Sampath Kumar has discharged the duties of Joint Director in theAnti-Corruption Bureau in exercise of the powers conferred by the StateGovernment.

15. We further find that Sri K. Sampath Kumar’s acts whilstdischarging the duties of Joint Director in the Anti-Corruption Bureauwere within the scope of the assumed official authority in public interestand not for his own benefit. Therefore, acts undertaken in this regardby the officer will be taken to be valid. This Court in a judgmentreported as Gokaraju Rangaraju v. State of Andhra Pradesh[7] heldas under:

“17. A judge, de facto, therefore, is one who is not a mere intruderor usurper but one who holds office, under colour of lawfulauthority, though his appointment is defective and may later be AB

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Afound to be defective. Whatever be the defect of his title to theoffice, judgments pronounced by him and acts done by him whenhe was clothed with the powers and functions of the office, albeitunlawfully, have the same efficacy as judgments pronounced andacts done by a judge de jure. Such is the de facto doctrine, bornof necessity and public policy to prevent needless confusion andBendless mischief…

19. In our view, the de facto doctrine furnishes an answer tothe submissions of Shri Phadke based on Section 9 of the CriminalProcedure Code and Article 21 of the Constitution. The judgeswho rejected the appeal in one case and convicted the accusedCin the other case were not mere usurpers or intruders but werepersons who discharged the functions and duties of judges undercolour of lawful authority. We are concerned with the office thatthe Judges purported to hold. We are not concerned with theparticular incumbents of the office. So long as the office wasDvalidly created, it matters not that the incumbent was not validlyappointed. A person appointed as a Sessions Judge, AdditionalSessions Judge or Assistant Sessions Judge, would be exercisingjurisdiction in the Court of Session and his judgments and orderswould be those of the Court of Session. They would continue tobe valid as the judgments and orders of the Court of Session,Enotwithstanding that his appointment to such Court might bedeclared invalid. On that account alone, it can never be said thatthe procedure prescribed by law has not been followed. It wouldbe a different matter if the constitution of the court itself is underchallenge. We are not concerned with such a situation in theinstant cases. We, therefore, find no force in any of theFsubmissions of the learned Counsel.”

16. The aforesaid judgment relies upon Pulin Behari Das v.King Emperor[8], wherein Justice Mookerjee held the following:- “The doctrine that the acts of officers de facto performed byGthem within the scope of their assumed ??? authority in theinterest of the public or third persons and not for their ownbenefit, are generally as valid and binding as if they were theacts of officers de jure, dates as far back as the Year-Books,and it stands confirmed, without any qualification or exception, H8 1911 SCC OnLine Cal 159 : (1911-12) 16 CWN 1105

by a long line of adjudications. Viner says “acts done by anofficer de facto and not de jure are good, for the law favoursone in a refuted authority” (Abridgment, Tit. Officers and OfficersG. 4). In fact the question for determination in cases involvingthe application of the de facto doctrine, is not, as a rule, whetherthe challenged acts, assuming the officer to be de facto, as suchare valid, but whether the person whose title is questioned is orwas really a de facto officer.

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It is not necessary for our present purposes to investigateexhaustively all the qualifications or limitations subject to whichthe de facto doctrine has to be applied. The substance of thematter is that the de facto doctrine was introduced into the lawas a matter of policy and necessity, to protect the interest of thepublic and the individual where those interests were involved inthe official acts of persons exercising the duties of an officewithout being lawful Officers. The doctrine in fact is necessaryto maintain the supremacy of the law and to preserve peace andorder in the community at large. Indeed, if any individual or bodyof individuals were permitted at his or their pleasure to collaterallychallenge the authority of and to refuse obedience to theGovernment of the State and the numerous functionaries throughwhom it exercised its various powers, on the ground of irregularexistence or defective title, insubordination and disorder of theworst kind would be encouraged. For the good order and peaceof society their authority must be upheld until in some regularmode their title is directly investigated and determined, [See theobservations in Scadding v. Lorant [???] and Norton v. ShelbyCounty [118 U.S. 425 (1886).] In the matter now before us,the sanction under sec. 196 of the Criminal Procedure Code wasgranted by the de facto Local Government and the cognizanceof the case has been taken by the de facto Sessions Judge. Inmy opinion, it is not open to the Appellants to question collaterallythe legality of the conviction upon the allegation that the LocalGovernment was irregularly constituted and the Sessions Judgeirregularly appointed. The first ground upon which the legalityof the trial is assailed must consequently be overruled.”

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A17. The de facto doctrine as encapsulated above has beenreiterated by this Court, even in the context of an executive appointment,in the judgment reported as Pushpadevi M. Jatia v. M. L. Wadhawan,Additional Secretary, Government of India and Ors.[9]. In this case,the Additional Secretary to the Government of India had detainedBMohanlal Jatia vide a Government order under sub-section (1) of Section3 of the Conservation of Foreign Exchange and Prevention of SmugglingActivities Act, 1974, on being satisfied that it was necessary to detainhim. Herein, the Additional Secretary relied on statements recorded byone R.C. Singh whom the appellant contended was not a “gazettedofficer” of enforcement under FERA, and therefore statements recordedCby the officer could not be relied upon to detain him. It was discussed:

“17. In any event, the learned Counsel further contends that R.C.Singh was clothed with the insignia of office and he waspurporting to exercise the functions and duties of a gazettedofficer of Enforcement under Section 40(1) of the FERA andDtherefore the de facto doctrine was attracted. He relies upon thedecision of this Court in Gokaraju Rangaraju v. State ofAndhra Pradesh [(1981) 3 SCC 132: 1981 SCC (Cri) 652: (1981)3 SCR 474] enunciating the de facto doctrine, born of necessityand public policy to prevent needless confusion and endlessEmischief. In other words, he contends that where an officer actsunder the law, it matters not how the appointment of theincumbent is made so far as the validity of his acts areconcerned.

18. We are inclined to the view that in this jurisdiction there is aFpresumption of regularity in the acts of officials and that theevidential burden is upon him who asserts to the contrary. Thecontention that R.C. Singh was not a gazetted officer ofEnforcement within the meaning of Section 40(1) of the FERAappears to be wholly misconceived besides being an afterthought.The validity of appointment of R.C. Singh to be an officer ofGEnforcement under this Act cannot be questioned…….

20. … Where an office exists under the law, it matters not howthe appointment of the incumbent is made, so far as validity ofhis acts are concerned. It is enough that he is clothed with the H9 (1987) 3 SCC 367

insignia of the office, and exercises its powers and functions. Theofficial acts of such persons are recognised as valid under thede facto doctrine, born of necessity and public policy to preventneedless confusion and endless mischief. In GokarajuRangaraju case [(1981) 3 SCC 132 : 1981 SCC (Cri) 652 :(1981) 3 SCR 474] Chinnappa Reddy, J., explained that thisdoctrine was engrafted as a matter of policy and necessity toprotect the interest of the public.”

18. Further, a Full Bench of Kerala High Court in a judgmentreported as P.S. Menon v. State of Kerala[10]held that the de factodoctrine was engrafted as a matter of policy and necessity to protectthe interest of the public as well as the individuals involved in the officialcapacity of persons exercising the duty of an officer without actuallybeing one in strict point of law. These officers may not be the officersde jure but by virtue of particular circumstances, their acts should beconsidered valid as a matter of public policy.

19. In another Division Bench judgment reported as P.Mahamani v. Tamil Nadu Magnesite, Ltd., Salem & Ors.[11], theMadras High Court held as under:

“12. An officer de facto is one who by some colour or right isin possession of an office and for the time being performs hisduties with public acquiescence, though having no right in fact.Whereas an intruder is one who attempts to perform the dutiesof an office without authority of law, and without the support ofpublic acquiescence. No one is under obligation to recognise orrespect the acts of an intruder, and for all legal purposes theyare absolutely void. But for the sake of order and regularity, andto prevent confusion in the conduct of public business and insecurity of private rights, the acts of officers de-facto arc notsuffered to be questioned because of the want of legal authorityexcept by some direct proceeding instituted for the purpose. Inall other cases the acts of an officer de facto are as valid andeffectual, while he is suffered to retain the office as though hewere an officer by right, and the same legal consequences willflow from them for the protection of the public and of third 10 AIR 1970 Ker 165

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Aparties. There is an important principle, which finds conciseexpression in the legal maxim that the acts of officers de factocannot be questioned collaterally. A person may be entitled tohis designation although he is not a true and rightful incumbentof the office, yet he is no more usurper but holds it under colourBof lawful authority. The de facto doctrine was introduced intothe law as a matter of policy and necessity, to protect the interestof the public and the individual where these interests wereinvolved in the official act of persons exercising the duties of anoffice without being lawful officers. The doctrine in fact isnecessary to maintain the supremacy of the law and lo preserveCpeace and order in the community at large. Indeed, if anyindividual or body of individuals were permitted, at his or theirpleasure, lo collaterally challenge the authority of and lo refuseobedience lo the Government of the State and the numerousfunctionaries through whom it exercised its various powers onDthe ground of irregular existence of defective title insubordinationand disorder of the worst kind would be encouraged. For the goodorder and peace of society, their authority must be up held untilin some regular mode their title is directly investigated anddetermined. When one holds office under colour of lawfulEauthority, whatever be the defect of his title lo the office, actsdone by him when he was clothed with the powers and functionsof the office, albeit unlawfully, have the same efficacy and actsdone by an officer de jure. The defective appointment of a defacto officer may be questioned directly in a proceeding lo whichFhe may be a party but it cannot be permitted to be questioned ina litigation between two private litigants, a litigation which is ofno concern or consequence lo the officer concerned. So the writpetitioner cannot be heard to say that Sri Madhavan Nair, thesecond respondent had no authority to preside over the meetingof the Board of Directors wherein it was resolved lo place himGunder suspension and initiate disciplinary action.”

20. The de facto doctrine was reiterated yet again in a recentSupreme Court judgment reported as Veerendra Kumar Gautam &Ors. v. Karuna Nidhan Upadhyay & Ors.[12].

H12 (2016) 14 SCC 18

21. Therefore, we find that Sri K. Sampath Kumar wasdischarging the duties of Joint Director in Anti-Corruption Bureau underthe authority conferred by the State. The authorisation in favour of Ch.Sudhakar was issued when he was performing his duties in publicinterest and not for his own benefit. Therefore, such authorisation isvalid and binding as if it was an act of an officer de jure.

22. We further find that the High Court, while deciding a petitionfor quashing of proceedings under Section 482 of the Code, could nothave commented upon the nature of employment of Sri K. SampathKumar, as such a question does not fall within the jurisdiction of theHigh Court whilst deciding the aforementioned petition.

23. Sri K. Sampath Kumar has authorised Ch. Sudhakar and thefinal report had been filed after the investigation conducted by the latter,in terms of clause (c) of Section 17 of the Act. In this regard, it cannotbe said that the investigation was not conducted in a mannercontemplated under law. Thus, Ch. Sudhakar was an authorized Officer,competent to investigate and file a report for the offences under theAct including of an offence under Section 13(1)(e) of the Act.

24. Another finding recorded by the High Court is that theinformant cannot be the investigating officer. Such a finding is basedupon Ch. Sudhakar being both the informant and the initiator of theinvestigations. The High Court derives support from the judgment ofthis Court reported as Mohan Lal v. State of Punjab[13]to hold that afair investigation is the very foundation of fair trial, which necessarilypostulates that the informant and the investigator must not be the sameperson.

25. The said judgment however has been held to be prospectivein the judgment reported as Varinder Kumar v. State of HimachalPradesh[14] wherein, this Court has succinctly put as under:

“18. The criminal justice delivery system, cannot be allowed toveer exclusively to the benefit of the offender making it uni-directional exercise. A proper administration of the criminal justicedelivery system, therefore requires balancing the rights of theaccused and the prosecution, so that the law laid down in MohanLal (supra) is not allowed to become a spring board for acquittal 13 (2018) 17 SCC 627

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in prosecutions prior to the same, irrespective of all otherconsiderations. We therefore hold that all pending criminalprosecutions, trials and appeals prior to the law laid down inMohan Lal (supra) shall continue to be governed by the individualfacts of the case.”

B26. Thus, we find that the orders of the High Court to quash theproceedings against the Accused Officer are not sustainable and areconsequently, set aside. Accordingly, the appeal filed by the State isallowed and the matter is remitted back to the learned trial court forfurther proceedings in accordance with law.

C27. Coming to the appeal filed by the Accused Officer, Mr. GuruKrishna Kumar, learned senior counsel vehemently argued that apreliminary inquiry before the registration of a crime is mandatory.Reference was made to a judgment reported as Lalita Kumari v.Government of Uttar Pradesh & Ors.[15] as well as the judgmentreported as State by Karnataka Lokayukta Police Station, Bengaluru Dv. M.R. Hiremath[16].

28. In Lalita Kumari, the Court has laid down the cases in whicha preliminary inquiry is warranted, more so, to avoid an abuse of theprocess of law rather than vesting any right in favour of an accused.EHerein, the argument made was that if a police officer is doubtful aboutthe veracity of an accusation, he has to conduct a preliminary inquiryand that in certain appropriate cases, it would be proper for such officer,on the receipt of a complaint of a cognizable offence, to satisfy himselfthat prima facie, the allegations levelled against the accused in thecomplaint are credible. It was thus held as under:-F

“73. In terms of the language used in Section 154 of the Code,the police is duty bound to proceed to conduct investigation intoa cognizable offence even without receiving information (i.e. FIR)about commission of such an offence, if the officer in charge ofthe police station otherwise suspects the commission of such anGoffence. The legislative intent is therefore quite clear, i.e., toensure that every cognizable offence is promptly investigated inaccordance with law. This being the legal position, there is noreason that there should be any discretion or option left with the 15 (2014) 2 SCC 1H16 (2019) 7 SCC 515

police to register or not to register an FIR when information isgiven about the commission of a cognizable offence. Everycognizable offence must be investigated promptly in accordancewith law and all information provided under Section 154 of theCode about the commission of a cognizable offence must beregistered as an FIR so as to initiate an offence. The requirementof Section 154 of the Code is only that the report must disclosethe commission of a cognizable offence and that is sufficient toset the investigating machinery into action.”

29. The Court concluded that the registration of an FIR ismandatory under Section 154 of the Code if the information disclosescommission of a cognizable offence and no preliminary inquiry ispermissible in such a situation. This court held as under:

“111. In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 ofthe Code, if the information discloses commission of acognizable offence and no preliminary inquiry ispermissible in such a situation.

ii) If the information received does not disclose acognizable offence but indicates the necessity for aninquiry, a preliminary inquiry may be conducted onlyto ascertain whether cognizable offence is disclosedor not.

iii) If the inquiry discloses the commission of a cognizableoffence, the FIR must be registered. In cases wherepreliminary inquiry ends in closing the complaint, acopy of the entry of such closure must be supplied tothe first informant forthwith and not later than oneweek. It must disclose reasons in brief for closing thecomplaint and not proceeding further.

iv) The police officer cannot avoid his duty of registeringoffence if cognizable offence is disclosed. Action mustbe taken against erring officers who do not register theFIR if information received by him discloses acognizable offence.

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only to ascertain whether the information reveals anycognizable offence.

vi) As to what type and in which cases preliminary inquiryis to be conducted will depend on the facts andcircumstances of each case. The category of casesin which preliminary inquiry may be made are as under:

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d) Corruption cases.”

30. It must be pointed that this Court has not held that apreliminary inquiry is a must in all cases. A preliminary enquiry may beconducted pertaining to Matrimonial disputes/family disputes,Commercial offences, Medical negligence cases, Corruption cases etc.DThe judgment of this court in Lalita Kumari does not state thatproceedings cannot be initiated against an accused without conductinga preliminary inquiry.

31. In M.R. Hiremath, this Court set aside an order on anapplication for discharge under Section 239 of the Code, inter alia,Efor the reason that a certificate under Section 65B of Evidence Acthad not been produced while relying upon the evidence of a spy camera.

An argument was raised that the spy camera has been given by theinvestigating officer even before investigations were formally started.On the strength of such fact, an argument was raised by Mr. GuruKrishna Kumar, learned counsel for the Accused Officer, that withoutFconducting a preliminary inquiry the FIR could not have been lodged.This Court in M.R. Hiremath held that when the investigating officerhad handed over the spy camera to the complainant, the purpose wasto ascertain, in the course of the preliminary inquiry, whether informationfurnished by the complainant could form the basis of lodging an FIR.GIt was held to be a preliminary inquiry to ascertain whether theinformation revealed a cognizable offence. The Court held as under:

“23. In the present case, on 15-11-2016, the complainant is allegedto have met the respondent. During the course of the meeting, aconversation was recorded on a spy camera. Prior thereto, theHinvestigating officer had handed over the spy camera to the complainant. This stage does not represent the commencementof the investigation. At that stage, the purpose was to ascertain,in the course of a preliminary inquiry, whether the informationwhich was furnished by the complainant would form the basisof lodging a first information report. In other words, the purposeof the exercise which was carried out on 15-11-2012 was apreliminary enquiry to ascertain whether the information revealsa cognizable offence.”

32. The said judgment does not help the learned counsel for theAccused Officer. The scope and ambit of a preliminary inquiry beingnecessary before lodging an FIR would depend upon the facts of eachcase. There is no set format or manner in which a preliminary inquiryis to be conducted. The objective of the same is only to ensure that acriminal investigation process is not initiated on a frivolous and untenablecomplaint. That is the test laid down in Lalita Kumari.

33. In the present case, the FIR itself shows that the informationcollected is in respect of disproportionate assets of the Accused Officer.The purpose of a preliminary inquiry is to screen wholly frivolous andmotivated complaints, in furtherance of acting fairly and objectively.Herein, relevant information was available with the informant in respectof prima facie allegations disclosing a cognizable offence. Therefore,once the officer recording the FIR is satisfied with such disclosure, hecan proceed against the accused even without conducting any inquiryor by any other manner on the basis of the credible information receivedby him. It cannot be said that the FIR is liable to be quashed for thereason that the preliminary inquiry was not conducted. The same canonly be done if upon a reading of the entirety of an FIR, no offence isdisclosed. Reference in this regard, is made to a judgment of this Courtreported as State of Haryana v. Bhajan Lal[17]wherein, this Court heldinter alia that where the allegations made in the FIR or the complaint,even if they are taken at their face value and accepted in their entirety,do not prima facie constitute any offence or make out a case againstthe accused and also where a criminal proceeding is manifestly attendedwith mala fide and/or where the proceeding is maliciously instituted withan ulterior motive for wreaking vengeance on the accused and with aview to spite him due to private and personal grudge.

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A34. Therefore, we hold that the preliminary inquiry warranted inLalita Kumari is not required to be mandatorily conducted in allcorruption cases. It has been reiterated by this Court in multipleinstances that the type of preliminary inquiry to be conducted will dependon the facts and circumstances of each case. There are no fixedparameters on which such inquiry can be said to be conducted.BTherefore, any formal and informal collection of information disclosinga cognizable offence to the satisfaction of the person recording the FIRis sufficient.

35. We also do not find any merit in the argument that there hasbeen no sanction before the filing of the report. The sanction can beCproduced by the prosecution during the course of trial, so the same maynot be necessary after retirement of the Accused Officer. This Courtin K. Kalimuthu v. State by DSP[18] held as under:

“15. The question relating to the need of sanction under Section197 of the Code is not necessarily to be considered as soon asDthe complaint is lodged and on the allegations contained therein.This question may arise at any stage of the proceeding. Thequestion whether sanction is necessary or not may have to bedetermined from stage to stage…”

36. The High Court has rightly held that no ground is made outEfor quashing of the proceedings for the reason that the investigatingagency intentionally waited till the retirement of the Accused Officer.The question as to whether a sanction is necessary to prosecute theAccused Officer, a retired public servant, is a question which can beexamined during the course of the trial as held by this Court in K.Kalimuthu. In fact, in a recent judgment in Vinod Kumar Garg v.FState (Government of National Capital Territory of Delhi)[19], thisCourt has held that if an investigation was not conducted by a policeofficer of the requisite rank and status required under Section 17 ofthe Act, such lapse would be an irregularity, however unless suchirregularity results in causing prejudice, conviction will not be vitiatedGor be bad in law. Therefore, the lack of sanction was rightly found notto be a ground for quashing of the proceedings.37. Mr. Guru Krishna Kumar further refers to a Single Benchjudgment of the Madras High Court in M. Soundararajan v. State 18 (2005) 4 SCC 512H19 Criminal Appeal No. 1781 of 2009 decided on 27th November, 2019

through the Deputy Superintendant of Police, Vigilance and AntiCorruption, Ramanathapuram[20] to contend that amended provisionsof the Act as amended by Act XVI of 2018 would be applicable as theAmending Act came into force before filing of the charge sheet. Wedo not find any merit in the said argument. In the aforesaid case, thelearned trial court applied amended provisions in the Act which cameinto force on 26[th] July, 2018 and acquitted both the accused from chargeunder Section 13(1)(d) read with 13(2) of the Act. The High Courtfound that the order of the trial court to apply the amended provisionsof the Act was not justified and remanded the matter back observingthat the offences were committed prior to the amendments being carriedout. In the present case, the FIR was registered on 9[th] November, 2011much before the Act was amended in the year 2018. Whether anyoffence has been committed or not has to be examined in the light ofthe provisions of the statute as it existed prior to the amendment carriedout on 26[th] July, 2018.

38. In view thereof, we do not find any merit in the reasoningsrecorded by the High Court in respect of contentions raised by theAccused Officer. The arguments raised by the Accused Officer cannotbe accepted in quashing the proceedings under the Act. Accordingly,Criminal Appeal No. 1663 of 2019 filed by the Accused Officer isdismissed whereas Criminal Appeal No. 1662 of 2019 filed by the Stateis allowed.

Kalpana K. Tripathy

Appeals disposed of.

20 Crl. A. (MD) No. 488 of 2018 and Crl. M.P. (MD) No. 8712 of 2018 decided on 30[th] October, 2018.

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