CHARANSINGH versus STATE OF MAHARASHTRA AND OTHERS on 24 March 2021

[2021] 3 S.C.R. 704

SUPREME COURT REPORTS

[2021] 3 S.C.R.

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CHARANSINGH

v.

STATE OF MAHARASHTRA AND OTHERS

(Criminal Appeal No. 363 of 2021)

BMARCH 24, 2021

[DR. DHANANJAYA Y. CHANDRACHUDAND M.R. SHAH, JJ.]

Code of Criminal Procedure, 1973: Preliminary enquiry –Corruption case – A complaint was received against the appellantCin the office of the Director General, Anti-corruption Bureau,Maharashtra State, Mumbai on 7.2.2018, wherein variousallegations were made against the appellant and his brothers withregard to accumulating the assets disproportionate to his knownsources of income – At that time the appellant was a Member andDPresident of Municipal Council – In connection with the saidcomplaint, Police Inspector, Anti-corruption Bureau had issuednotice dated 04.03.2020 to the appellant asking him to providedocuments relating to his property, assets, bank statements, incometax returns and to give statement to the police – Feeling aggrievedwith the said notice calling upon the appellant to personally remainEpresent before the investigating officer of the Anti-corruptionBureau, Nagpur to give his statement in an ‘open enquiry’ in respectof the property owned by him along with the information on thepoints stated in the said notice, the appellant preferred writ petitionbefore the High Court – High Court dismissed the writ petition – InFthe instant appeal, question which arose for the consideration waswhether such an enquiry at pre-FIR stage would be legal – Held:An enquiry at pre-FIR stage is held to be permissible and not onlypermissible but desirable, more particularly in cases where theallegations are of misconduct of corrupt practice acquiring theassets/properties disproportionate to his known sources of incomeG– After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected duringsuch enquiry, it is found that the complaint is vexatious and/or thereis no substance at all in the complaint, the FIR shall not be lodged– However, if the material discloses prima facie a commission of theoffence alleged, the FIR will be lodged and the criminal proceedingsH

will be put in motion and further investigation will be carried out interms of the Code of Criminal Procedure – Therefore, such apreliminary enquiry would be permissible only to ascertain whethercognizable offence is disclosed or not and only thereafter FIR wouldbe registered.

Code of Criminal Procedure, 1973: Preliminary enquiry –Extent of, permissibility – By the impugned notice, during the courseof the ‘open enquiry’, the appellant was called upon to give hisstatement and to carry along with the information on the points,which are referred for the purpose of recording his statement – Theinformation sought on the said points had direct connection withthe allegations made against the appellant, namely, accumulatingassets disproportionate to his known sources of income – However,such a notice, while conducting the ‘open enquiry’, shall berestricted to facilitate the appellant to clarify regarding his assetsand known sources of income – The same cannot be said to be afishing or roving enquiry. Such a statement cannot be said to be astatement under s.160 and/or the statement to be recorded duringthe course of investigation as per the Code of Criminal Procedure– Such a statement even cannot be used against the appellant duringthe course of trial – Statement of the appellant and the informationso received during the course of discrete enquiry shall be only forthe purpose to satisfy and find out whether an offence unders.13(1)(e) of the PC Act, 1988 is disclosed – Such a statement cannotbe said to be confessional in character, and as and when and/or ifsuch a statement is considered to be confessional, in that case only,it can be said to be a statement which is self-incriminatory, whichcan be said to be impermissible in law – Prevention of CorruptionAct, 1988 – s.13(1)(e).

Dismissing the appeal, the Court

Conclusion

Dismissing the appeal, the Court

HELD: 1.1 While considering the larger question, whetherpolice is duty bound to register an FIR and/or it is mandatory forregistration of FIR on receipt of information disclosing acognizable offence and whether it is mandatory or the police officerhas option, discretion or latitude of conducting preliminary enquirybefore registering FIR, this Court in the case of Lalita Kumarihas observed that it is mandatory to register an FIR on receipt ofinformation disclosing a cognizable offence and it is the general A

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Arule. However, while holding so, this Court has also consideredthe situations/cases in which preliminary enquiry is permissible/desirable. While holding that the registration of FIR is mandatoryunder Section 154, if the information discloses commission of acognizable offence and no preliminary enquiry is permissible insuch a situation and the same is the general rule and must beBstrictly 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 furtherobserved that if the information received does not disclose acognizable offence but indicates the necessity for an inquiry, aCpreliminary enquiry may be conducted to ascertain whethercognizable offence is disclosed or not. It is observed that as towhat type and in which cases the preliminary enquiry is to beconducted will depend upon the facts and circumstances of eachcase. As per the decision of this Court, the categories of cases inwhich preliminary enquiry may be made are as under: (a)DMatrimonial disputes/family disputes; (b) Commercial offences;(c) Medical negligence cases; (d) Corruption cases; (e) Caseswhere there is abnormal delay/laches in initiating criminalprosecution, for example, over 3 months’ delay in reporting thematter without satisfactorily explaining the reasons for delay.EThese are only illustrations and not exhaustive of all conditionswhich may warrant preliminary inquiry. [Para 8.1][720-A-G]

P. Sirajuddin v. State of Madras (1970) 1 SCC 595: [1970] 3 SCR 931; Lalita Kumari v. Government ofUttar Pradesh (2014) 2 SCC 1 : [2013] 14 SCR 713 –Frelied on.

1.2 While expressing the need for a preliminary enquirybefore proceeding against public servants who are charged withthe allegation of corruption, it is observed in the case of P.Sirajuddin that “before a public servant, whatever be his status,Gis publicly charged with acts of dishonesty which amount to seriousmisdemeanour or misconduct of indulging into corrupt practiceand a first information is lodged against him, there must be somesuitable preliminary enquiry into the allegations by a responsibleofficer. The lodging of such a report against a person who isoccupying the top position in a department, even if baseless, wouldH

do incalculable harm not only to the officer in particular but tothe department he belonged to in general. If the Governmenthad set up a Vigilance and Anti-Corruption Department as wasdone in the State of Madras and the said department wasentrusted with enquiries of this kind, no exception can be takento an enquiry by officers of this department”. It is further observedthat “when such an enquiry is to be held for the purpose of findingout whether criminal proceedings are to be initiated and the scopethereof must be limited to the examination of persons who haveknowledge of the affairs of the person against whom theallegations are made and documents bearing on the same to findout whether there is a prima facie evidence of guilt of the officer,thereafter, the ordinary law of the land must take its course andfurther enquiry be proceeded with in terms of the Code ofCriminal Procedure by lodging a first information report”.[Para 9][722-E-G; 723-A]

2. An enquiry at pre-FIR stage is held to be permissibleand not only permissible but desirable, more particularly in caseswhere the allegations are of misconduct of corrupt practiceacquiring the assets/properties disproportionate to his knownsources of income. After the enquiry/enquiry at pre-registrationof FIR stage/preliminary enquiry, if, on the basis of the materialcollected during such enquiry, it is found that the complaint isvexatious and/or there is no substance at all in the complaint, theFIR shall not be lodged. However, if the material discloses primafacie a commission of the offence alleged, the FIR will be lodgedand the criminal proceedings will be put in motion and the furtherinvestigation will be carried out in terms of the Code of CriminalProcedure. Therefore, such a preliminary enquiry would bepermissible only to ascertain whether cognizable offence isdisclosed or not and only thereafter FIR would be registered.[Para 9.1][723-B-D]

3. Even as held by this Court in the case of Superintendentof Police, CBI v. Tapan Kumar Singh, a GD entry recording theinformation by the informant disclosing the commission of acognizable offence can be treated as FIR in a given case and thepolice has the power and jurisdiction to investigate the same.

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AHowever, in an appropriate case, such as allegations ofmisconduct of corrupt practice by a public servant, before lodgingthe first information report and further conducting theinvestigation, if the preliminary enquiry is conducted to ascertainwhether a cognizable offence is disclosed or not, no fault can befound. Even at the stage of registering the FIR, what is requiredBto be considered is whether the information given discloses thecommission of a cognizable offence and the information so lodgedmust provide a basis for the police officer to suspect thecommission of a cognizable offence. At this stage, it is enough ifthe police officer on the basis of the information given suspectsCthe commission of a cognizable offence, and not that he must beconvinced or satisfied that a cognizable offence has beencommitted. Despite the proposition of law laid down by this Courtin catena of decisions that at the stage of lodging the firstinformation report, the police officer need not be satisfied orconvinced that a cognizable offence has been committed,Dconsidering the observations made by this Court in the case of P.Sirajuddin and considering the observations by this Court in thecase of Lalita Kumari before lodging the FIR, an enquiry is heldand/or conducted after following the procedure as perMaharashtra State Anti-corruption & Prohibition IntelligenceEBureau Manual, it cannot be said that the same is illegal and/orthe police officer, Anti-corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry atpre-registration of FIR stage. [Para 9.2][723-E-H; 724-A-B]

Superintendent of Police,CBI v. Tapan Kumar SinghF(2003) 6 SCC 175 : [2003] 3 SCR 485 – relied on.

4. In the present case, the office of the Director General,ACB, Maharashtra State, Mumbai had received a complaintagainst the appellant and his three brothers, wherein variousallegations have been made against the appellant with regard toGaccumulating the assets disproportionate to his known sourcesof income. At that time, the appellant was a Member and Presidentof the Municipal Council, Katol, District Nagpur. On the basis ofthe said complaint, the Superintendent of Police, Anti-corruptionBureau, Nagpur initiated a discrete enquiry against the appellantwith regard to the allegations in the complaint through the officersH

working under him. After conducting a discrete enquiry, reportdated 27.2.2020 has been submitted to the Superintendent ofPolice, ACB, Nagpur. After scrutiny of the said report, the samehas been forwarded to the Director General of Police, ACB. Afterconsidering the report, the Director General of Police, ACB haddirected the Superintendent of Police who in turn had directedthe Police Inspector, ACB, Nagpur to conduct an ‘open enquiry’and during the course of conducting an ‘open enquiry’, theappellant against whom the allegations are made of accumulatingthe assets disproportionate to his known sources of income, whichcan be said to be an offence under Section 13(1)(e) of the PC Act,has been served with the impugned notice, impugned before theHigh Court. A detailed procedure is provided under theMaharashtra State Anti-corruption & Prohibition IntelligenceBureau Manual of Instructions 1968, while conducting openenquiries. Discrete enquiry is permissible as per para 14 of thesaid Manual and the ‘open enquiry’ is permissible as per para 15of the said Manual. While conducting open enquiries, the enquiryofficer who is conducting the ‘open enquiry’ is required to followthe following instructions: As soon as an application or informationis received by him for making an open enquiry, it should beentered in the Enquiry Register and further developmentsrecorded in it from time to time. (For proforma of the Registersee Appendix XX). The number of the file allotted to the enquiryshould be cited in all references. The contents of the applicationor information should be scrutinized carefully and variousallegations contained therein be noted seriatum. A plan of actionshould be prepared, indicating therein – The Director’s filenumber and the date of receipt, Serial number of the allegation,Allegations in brief, Name of witnesses to be examined or likelyto be examined, Papers or documents to be collected andProbable date of completion of the enquiry. The plan of actionprepared by the Enquiry Officer as above, should be submittedwithin seven days of the receipt of the enquiry to the Director.The statement of the applicant should be recorded noting thereinall the circumstances within his knowledge with regard to theallegations. The statements of all the witnesses whose namesmight transpire during the examination of the applicant and alsoof other witnesses, if any, should be recorded. All available AB

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Adocumentary evidence in support of the allegation should becollected. The statement of the person against whom theallegations have been made should be recorded, giving him anopportunity to explain each allegation against him. The applicationshould not be shown to him in any circumstances. The name ofthe applicant should not be disclosed, if the applicant so expresslyBdesires. The statements of all persons cited in defence shouldbe recorded and the relevant documentary evidence collected.After recording the evidence of both the sides and collecting thenecessary documents, the entire record should be examined toformulate a definite opinion on each of the allegations. The papersCof enquiry, with the final report, should be submitted to theDirector. A copy of a ‘Roznama’ containing details showing theday-to-day progress of the enquiry should be maintained as fromthe date of the receipt of the application and attached to the papersof enquiry and the final report. [Para 10][724-C-H; 725-A-H;726-A-C]D

5. After completing the enquiry, a final report along withthe papers of the enquiry is required to be sent to the DirectorGeneral, ACB. Even, while submitting the final report and thepapers of the enquiry, which are the points to be considered and/or borne in mind are stated in para 16 of the Manual. OnlyEthereafter and if it is found that a cognizable offence is made outand there is substance in the allegations, an FIR would be lodgedand further investigation will be carried out after following theprocedure as per the Code of Criminal Procedure. Therefore, afool proof safeguard and procedure is provided before lodging anFFIR/complaint before the Court against the public servant, whois facing the allegations of corrupt practice. However, such anenquiry would be conducted to ascertain whether a cognizableoffence is disclosed or not. Even at the stage of registering thefirst information report, the police officer is not required to besatisfied or convinced that a cognizable offence has beenGcommitted. It is enough if the information discloses thecommission of a cognizable offence as the information only setsin motion the investigative machinery, with a view to collect allnecessary evidence, and thereafter to take action in accordancewith law. Therefore, as such, holding such an enquiry, may beHdiscrete/open enquiry, at pre-registration of FIR stage in the case of allegation of corrupt practice of accumulating assetsdisproportionate to his known sources of income, cannot be saidto be per se illegal. [Para 10.1][726-C-G]

6. The next question posed for the consideration of thisCourt is, whether to what extent such an enquiry is permissibleand what would be the scope and ambit of such an enquiry. By theimpugned notice, impugned before the High Court, and duringthe course of the ‘open enquiry’, the appellant has been calledupon to give his statement and he has been called upon to carryalong with the information on the points, which are referred forthe purpose of recording his statement. The information soughton the aforesaid points is having a direct connection with theallegations made against the appellant, namely, accumulatingassets disproportionate to his known sources of income. However,such a notice, while conducting the ‘open enquiry’, shall berestricted to facilitate the appellant to clarify regarding his assetsand known sources of income. The same cannot be said to be afishing or roving enquiry. Such a statement cannot be said to be astatement under Section 160 and/or the statement to be recordedduring the course of investigation as per the Code of CriminalProcedure. Such a statement even cannot be used against theappellant during the course of trial. Statement of the appellantand the information so received during the course of discreteenquiry shall be only for the purpose to satisfy and find outwhether an offence under Section 13(1)(e) of the PC Act, 1988 isdisclosed. Such a statement cannot be said to be confessional incharacter, and as and when and/or if such a statement is consideredto be confessional, in that case only, it can be said to be a statementwhich is self-incriminatory, which can be said to be impermissiblein law. [Para 11][726-H; 727-A-D]

7. At this stage, it is required to be noted that in the presentcase as such the appellant has produced the relevant documentsof some of the properties owned by him and the appellant hasjoined the ‘open enquiry’. It also appears from the counter filedon behalf of the Anti-corruption Bureau that on the basis of theinformation given by the appellant, letters have been issued tovarious authorities/banks, seeking further and better particulars.Partial statement of the appellant has already been recorded.

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[2021] 3 S.C.R.

AHowever, such a statement/enquiry would be restricted only toascertain whether a cognizable offence is disclosed or not. Sucha statement cannot be said to be a confessional statement. Afterhaving been satisfied and after conclusion of the enquiry and onthe basis of the material collected, if it is found that there issubstance in the allegations against the appellant and it disclosesBa cognizable offence, FIR will be lodged and the investigatingagency has to collect the evidence/further evidence tosubstantiate the allegations/charge of accumulating the assetsdisproportionate to his known sources of income. However, ifduring the enquiry at pre-registration of FIR stage, if the appellantCsatisfies on production of the materials produced relating to hisknown sources of income and the assets, in that case, no FIR willbe lodged and if he is not able to clarify his assets, vis-à-vis, knownsources of income, then the FIR will be lodged and he will besubjected to trial. Therefore, as such, such an enquiry would beto safeguard his interest also which may avoid further harassmentDto him. [Para 12]

Case Law Reference

From the Judgment and Order dated 25.11.2020 of the High CourtFof Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Writ PetitionNo. 226 of 2020.

Subodh Dharamadhikari, Sr. Adv., Mohit P. Khajanchi, MaheshDhatrak, Gaurav Agrawal, Advs. for the Appellant.

Raja Thakare, Sr. Adv., Rahul Chitnis, Sachin Patil, Aaditya A.GPande, Geo Joseph, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentHand order dated 25.11.2020 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 226 of2020, by which the High Court has dismissed the said writ petitionchallenging notice dated 04.03.2020 issued by the Police Inspector, Anti-Corruption Bureau, Nagpur, calling upon the appellant to personally remainpresent before the investigating officer of the Anti-corruption Bureau,Nagpur to give his statement in an ‘open enquiry’ in respect of the propertyowned by him along with the information on the points stated in the saidnotice, the appellant has preferred the present appeal.

2. That a complaint was received against the appellant in the officeof the Director General, Anti-corruption Bureau, Maharashtra State,Mumbai on 7.2.2018, wherein various allegations have been made againstthe appellant and his brothers with regard to accumulating the assetsdisproportionate to his known sources of income. It appears that at thattime the appellant was a Member and President of Municipal Council,Katol, District Nagpur. That in connection with the said complaint, PoliceInspector, Anti-corruption Bureau, Nagpur had issued a notice to theappellant asking him to provide documents relating to his property, assets,bank statements, income tax returns and asking the appellant to givestatement to the police.

3. Feeling aggrieved and dissatisfied with the said notice dated04.03.2020 issued by the Police Inspector, Anti-Corruption Bureau,Nagpur calling upon the appellant to personally remain present beforethe investigating officer of the Anti-corruption Bureau, Nagpur to givehis statement in an ‘open enquiry’ in respect of the property owned byhim along with the information on the points stated in the said notice, theappellant herein preferred Criminal Writ Petition No. 226 of 2020 beforethe High Court.

3.1 It was submitted on behalf of the appellant that the PoliceInspector, Anti-Corruption Bureau, Nagpur has no power to issue thesaid notice. It was also submitted that the said notice was issued in apurported exercise of power under Section 160 Cr.P.C., however, Section160 Cr.P.C. shall not be applicable at all as the appellant is not a witnessin the case. It was also the case on behalf of the appellant that there isno statutory provision which would compel any body to give statementto the police. It was also submitted that there is no FIR against theappellant.

3.2 On the other hand, it was the case on behalf of the State thatthe appellant has been called upon to give his statement in an ‘open A

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Aenquiry’ which is in the nature of preliminary enquiry. It was the complaintreceived by the Anti-Corruption Bureau, Nagpur regarding amassing ofhuge properties by the appellant. It was submitted that such a preliminaryenquiry is permissible, as held by this Court in the case of Lalita Kumariv. Government of Uttar Pradesh (2014) 2 SCC 1. Heavy reliancewas placed upon paragraphs 89, and 120 of the said decision. AfterBfollowing the decision of this Court in the case of Lalita Kumari (supra),the High Court has observed that a preliminary enquiry in order to verifythe correctness of the allegations and also to elicit some information/material which may be relevant for deciding the question regardingcommission or non-commission of cognizable offence would beCpermissible. Thereafter, the High Court has further observed that as thenotice has been issued only for facilitating the purpose of preliminaryenquiry, it cannot be said to be bad in law. The High Court has furtherobserved that it is true that by such notice a person like the appellantcannot be compelled to make his personal appearance before the officerof the Anti-Corruption Bureau. However, the High Court has furtherDobserved that not responding to such a notice, may be at the peril of thenoticee himself for the reason that the officer of the Anti-CorruptionBureau may draw some adverse inference against the person not co-operating with the preliminary enquiry. For the aforesaid, the High Courttook into consideration Condition No. 16 of the State Anti-CorruptionEBureau Manual. By observing the above, the High Court, by theimpugned judgment and order has dismissed the said writ petition, whichhas given rise to the present appeal.

4. Shri Subodh Dharmadhikari, learned Senior Advocate appearingon behalf of the appellant has vehemently submitted that notice datedF04.03.2020 issued by the Anti-Corruption Bureau by which the appellanthas been directed to appear before the investigating officer, Anti-Corruption Bureau, Nagpur and to make a statement in respect of theproperty owned by him and to give information on the points stated inthe said notice has no statutory force.

G4.1 It is submitted that the said notice has been issued in purportedexercise of power under Section 160 Cr.P.C. However, as the appellantcannot be said to be a witness in the case, Section 160 Cr.P.C. shall notbe applicable at all. It is submitted that therefore notice dated 4.3.2020 isbeyond the scope and ambit of Section 160 Cr.P.C.

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4.2 It is further submitted that while dismissing the writ petition,the High Court has materially erred in relying upon the decision of thisCourt in the case of Lalita Kumari (supra).

4.3 It is further submitted that the High Court ought to haveappreciated that such a notice calling upon the appellant to give thestatement and more particularly on the points mentioned in the said noticeshall be hit by Article 20(3) and 21 of the Constitution of India. It isfurther submitted that as such notice dated 4.3.2020 is for roving andfishing enquiry which is not permissible under the law and as such it hasno statutory backing.

4.4 It is further submitted that the High Court has failed toappreciate that notice dated 4.3.2020 is a clear example of politicalvendetta and actuated by malice to harass the political opponent by theruling party.

4.5 It is further submitted by the learned counsel appearing onbehalf of the appellant that as such the reliance placed upon ConditionNo. 16 of the State Anti-Corruption Bureau Manual has no statutoryforce even as observed and held by this Court in the case of LalitaKumari (supra).

4.6 Making the above submissions, it is prayed to allow the presentappeal and quash and set aside the impugned judgment and order passedby the High Court, as well as, impugned notice dated 4.3.2020 issued bythe Anti-Corruption Bureau, Nagpur.

5. While opposing the present appeal, Shri Raja Thakare, learnedSenior Advocate has vehemently submitted that the notice issued by thePolice Inspector, Anti-Corruption Bureau, Nagpur is absolutely inconsonance with the ACB Manual which permits the discrete enquiriesand open enquiries, so as to find out the veracity of the allegations in thecomplaint. It is submitted that even the same is also permissible as perthe decision of this Court in the case of Lalita Kumari (supra).

5.1 It is submitted that a complaint was received in the office ofthe Director General, Anti-Corruption Bureau, Maharashtra State,Mumbai, wherein various allegations have been made against theappellant with regard to accumulating the assets disproportionate to hisknown sources of income. That on the basis of the said complaint, theSuperintendent of Police, Anti-Corruption Bureau, Nagpur initiated adiscrete enquiry against the appellant with regard to the allegations in AB

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Athe complaint through the officers working under him. Accordingly, adiscrete enquiry was conducted and on 27.02.2020, a report wassubmitted to the Superintendent of Police, Anti-Corruption Bureau,Nagpur. It is submitted that after scrutiny of the said report, theSuperintendent of Police, Anti-Corruption Bureau, Nagpur forwardedthe same to the Director General of Police, Anti-Corruption Bureau,BMaharashtra, Mumbai. That the Director General of Police, Anti-Corruption Bureau, Maharashtra vide his letter dated 28.02.2020 directedthe Superintendent of Police, Anti-Corruption Bureau, Nagpur who inturn directed the Police Inspector, Anti-Corruption Bureau, Nagpur toconduct an ‘open enquiry’.C

5.2 It is submitted that the said ‘open enquiry’ is to find out if anoffence under Section 13(e) of the Prevention of Corruption Act isdisclosed. It is submitted that Section 13(e) of the PC Act makes itapparent that the person against whom a complaint is received has tosatisfy the investigating agency whether his assets are in consonanceDwith his known sources of income and accountable. The informationregarding assets may be provided by the source informant or can bedetected during the discrete enquiry, however, the sources of his incomewould be within exclusive knowledge of the person against whom thecomplaint or information is received. It is submitted that therefore the‘open enquiry’ is warranted before the registration of an offence. It isEsubmitted that accordingly the Superintendent of Police, Anti-CorruptionBureau, Nagpur directed the Police Inspector, Anti-Corruption Bureau,Nagpur to conduct an ‘open enquiry’ with regard to the allegations levelledin the complaint.

5.3 It is submitted that the notice has been issued as per theFprincipals of natural justice to facilitate the appellant to clarify regardinghis assets and known sources of income, which would enable theinvestigating officer to ascertain whether cognizable offence is disclosedor not. It is submitted that however Section 160 Cr.P.C. has beeninadvertently mentioned in the said notice.G

5.4 It is further submitted that, as such, despite number of noticesissued, the appellant is not co-operating with the investigating agencyand is not appearing for giving his statement on the points mentioned inthe notice, on one pretext or the other. It is submitted that, as such, theappellant did join the ‘open enquiry’ and ask for time to collect detailsHand produce the same. It is submitted that even on 7.1.2021, the appellant

attended the office of the Anti-Corruption Bureau, Nagpur with relevantdocuments of some of the properties owned by him and his partialstatement was recorded and his statement remained incomplete. Butthe appellant avoided to give details of his assets, liabilities and prominentexpenditures and therefore no conclusion could be drawn. It is submittedtherefore that once the appellant having presented himself before theinvestigating authority on 7.1.2021 and his partial statement having beenrecorded, the issue whether the said notice can compel the appellant toappear 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 summonedfor a preliminary enquiry only to ascertain whether cognizable offenceis disclosed or not. If the preliminary enquiry discloses the cognizableoffence, then a first information report will be registered against theappellant. However, that stage has not been reached as the appellanthas only partially recorded his statement before the investigating officerand the preliminary enquiry has remained un-concluded.

5.6 It is submitted that in the discrete enquiry, the investigatingauthority has found, prima facie, substance in the allegations with regardto the complaint received and therefore it was decided to conduct an‘open enquiry’. It is submitted that the decision with regard to discreteenquiry as well as an open enquiry with regard to allegations against theappellant was taken as per the provisions of the Manual of the Anti-Corruption Bureau, Maharashtra. Heavy reliance is placed on ChapterIV of the Anti-Corruption Manual Rules, which provides for conductingthe investigation including discrete enquiry and ‘open enquiry’.

5.7 It is further submitted that the enquiry is being conducted toverify the truthfulness of the allegations with regard to the accumulationof assets disproportionate to the known sources of income of theappellant. Unless the relevant property details of the appellant are madeavailable to the authorities, the investigating authority will not be able toascertain as to whether the assets of the appellants are disproportionateto his known sources of income or not. The very nature of the enquiry inrespect of offence under Section 13(e) of the PC Act presupposes thatit is the person against whom the allegations are made has to explain thedetails of his property qua his known sources of income. It is submittedthat therefore the enquiry initiated should reach to its logical conclusion.It is submitted that at the time of culmination of the inquiry, a decision A

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Awill be taken on merits and on the basis of the evidence/material collectedduring the course of ‘open enquiry’, it will be considered whether acognizable offence is made out or not. It is submitted that if no substanceis found during the ‘open enquiry’, the Anti-Corruption Bureau, Nagpurmay close the enquiry without any further action.B5.8 It is further submitted that calling upon the appellant to disclosehis properties, assets etc. cannot be said to be in violation of Articles20(3) and 21 of the Constitution of India, as alleged. It is submitted toinvoke the constitutional right under Article 20(3), an accusation againsthim must exist. It is submitted that as on date no FIR has been registeredagainst the appellant and the investigating authorities are only conductingCthe preliminary enquiry. It is submitted that it cannot be said that the saidnotice seeks to make a roving inquiry with regard to the assets andpersonal details of the appellant or that it is vague.

5.9 Making the above submissions, it is prayed to dismiss thepresent appeal.D6. We have heard the learned counsel for the respective partiesat length.

At the outset, it is required to be noted that what was challengedbefore the High Court was notice issued by the Police Inspector, Anti-Corruption Bureau, Nagpur, by which the appellant has been called uponEto give his statement in respect of the properties owned by him, for thepurpose of enquiring the complaint against him, alleging accumulatingthe assets disproportionate to his known sources of income which, assuch, 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 onFthe following aspects for the purpose of recording his statement:

1) Record in respect of ancestral and self-acquired propertyin your name, for example, Registered Deed, ConstructionLicence, Receipts relating to tax, Sale Deed of AgriculturalLand, 7/12 Extract and Mutation Entries, etc.

G2)Details of ancestral and self-acquired gold coins andjewellery, likewise sale and purchase of vehicle.

3) Passbooks, Certificates, L.I.C., Shares/DebenturesCertificates, etc. in respect of investments at bank, insuranceand others in your name and in the name of your familymembers.H

4) Details of documentary evidence in respect of loanAborrowed by you.

5) Proofs and income tax return in respect of your incomeother than your remuneration.

6) Details of expenditure incurred by you in respect ofpilgrimages, functions, hospitals, foreign tours, etc.

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7) Information regarding remuneration and allowancesreceived by you.

The High Court, by the impugned judgment and order, has refusedto quash the said notice mainly relying upon the decision of this Court inthe case of Lalita Kumari (supra).

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7. Therefore, the short question which is posed for theconsideration of this Court is, whether such an enquiry at pre-FIR stagewould be legal and to what extent such an enquiry is permissible?

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7.1 While answering the aforesaid two questions and permissibilityof the enquiry at pre-FIR stage, it is required to be noted that on thebasis of the complaint against him, the appellant is facing variousallegations with regard to accumulating the assets disproportionate tohis known sources of income, when the appellant was a member andthe President of the Municipal Council, Katol, District Nagpur – a publicservant. At that stage and while considering the veracity of the allegationof accumulating the assets disproportionate to his known sources ofincome, the investigating agency has thought it fit to hold an ‘open enquiry’and during the course of such ‘open enquiry’ the appellant has beencalled upon to make his statement along with the information on thepoints, referred to hereinabove. Whether, such an enquiry, which can besaid to be a preliminary enquiry, is permissible under the MaharashtraState Anti-Corruption Manual shall be dealt with and consideredhereinbelow.

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8. However, whether in a case of a complaint against a publicservant regarding accumulating the assets disproportionate to his knownsources of income, which can be said to be an offence under Section13(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 decisionis required, the same is governed by the decision of this Court in thecase of Lalita Kumari (supra).

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A8.1 While considering the larger question, whether police is dutybound to register an FIR and/or it is mandatory for registration of FIR onreceipt of information disclosing a cognizable offence and whether it ismandatory or the police officer has option, discretion or latitude ofconducting preliminary enquiry before registering FIR, this Court in thecase of Lalita Kumari (supra) has observed that it is mandatory toBregister an FIR on receipt of information disclosing a cognizable offenceand it is the general rule. However, while holding so, this Court has alsoconsidered the situations/cases in which preliminary enquiry is permissible/desirable. While holding that the registration of FIR is mandatory underSection 154, if the information discloses commission of a cognizableCoffence and no preliminary enquiry is permissible in such a situation andthe same is the general rule and must be strictly complied with, thisCourt has carved out certain situations/cases in which the preliminaryenquiry is held to be permissible/desirable before registering/lodging ofan FIR. It is further observed that if the information received does notdisclose a cognizable offence but indicates the necessity for an inquiry, aDpreliminary enquiry may be conducted to ascertain whether cognizableoffence is disclosed or not. It is observed that as to what type and inwhich cases the preliminary enquiry is to be conducted will depend uponthe facts and circumstances of each case. As per the decision of thisCourt, the categories of cases in which preliminary enquiry may be madeEare as under:

(a) Matrimonial disputes/family disputes (b) Commercial offences

(c) Medical negligence cases

F(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminalprosecution, for example, over 3 months’ delay in reporting thematter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of allGconditions which may warrant preliminary inquiry.

In paragraph 120, this Court concluded and issued directions asunder:

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

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120.1. The registration of FIR is mandatory under Section 154 ofthe Code, if the information discloses commission of a cognizableoffence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizableoffence but indicates the necessity for an inquiry, a preliminaryinquiry may be conducted only to ascertain whether cognizableoffence is disclosed or not.

120.3. If the inquiry discloses the commission of a cognizableoffence, the FIR must be registered. In cases where preliminaryinquiry ends in closing the complaint, a copy of the entry of suchclosure must be supplied to the first informant forthwith and notlater than one week. It must disclose reasons in brief for closingthe complaint and not proceeding further.

120.4. The police officer cannot avoid his duty of registeringoffence if cognizable offence is disclosed. Action must be takenagainst erring officers who do not register the FIR if informationreceived by him discloses a cognizable offence.

120.5. The scope of preliminary inquiry is not to verify the veracityor otherwise of the information received but only to ascertainwhether the information reveals any cognizable offence.

120.6. As to what type and in which cases preliminary inquiry isto be conducted will depend on the facts and circumstances ofeach case. The category of cases in which preliminary inquirymay 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 criminalprosecution, for example, over 3 months’ delay in reporting thematter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of allconditions which may warrant preliminary inquiry.

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A120.7. While ensuring and protecting the rights of the accusedand the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact ofsuch delay and the causes of it must be reflected in the GeneralDiary entry.

B120.8. Since the General Diary/Station Diary/Daily Diary is therecord of all information received in a police station, we directthat all information relating to cognizable offences, whetherresulting in registration of FIR or leading to an inquiry, must bemandatorily and meticulously reflected in the said diary and thedecision to conduct a preliminary inquiry must also be reflected,Cas mentioned above.”

9. In the context of offences relating to corruption, in paragraph117 in the case of Lalita Kumari (supra), this Court also took note ofthe 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 aDpreliminary enquiry before proceeding against public servants.

While expressing the need for a preliminary enquiry beforeproceeding against public servants who are charged with the allegationof corruption, it is observed in the case of P. Sirajuddin (supra) that“before a public servant, whatever be his status, is publicly charged withEacts of dishonesty which amount to serious misdemeanour or misconductof indulging into corrupt practice and a first information is lodged againsthim, there must be some suitable preliminary enquiry into the allegationsby a responsible officer. The lodging of such a report against a personwho is occupying the top position in a department, even if baseless,Fwould do incalculable harm not only to the officer in particular but to thedepartment he belonged to in general. If the Government had set up aVigilance and Anti-Corruption Department as was done in the State ofMadras and the said department was entrusted with enquiries of thiskind, no exception can be taken to an enquiry by officers of thisdepartment”. It is further observed that “when such an enquiry is to beGheld for the purpose of finding out whether criminal proceedings are tobe initiated and the scope thereof must be limited to the examination ofpersons who have knowledge of the affairs of the person against whomthe allegations are made and documents bearing on the same to find outwhether there is a prima facie evidence of guilt of the officer, thereafter,Hthe 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 afirst information report”.

9.1 Thus, an enquiry at pre-FIR stage is held to be permissibleand not only permissible but desirable, more particularly in cases wherethe allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After theenquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if,on the basis of the material collected during such enquiry, it is found thatthe complaint is vexatious and/or there is no substance at all in thecomplaint, the FIR shall not be lodged. However, if the material disclosesprima facie a commission of the offence alleged, the FIR will be lodgedand the criminal proceedings will be put in motion and the furtherinvestigation will be carried out in terms of the Code of CriminalProcedure. Therefore, such a preliminary enquiry would be permissibleonly to ascertain whether cognizable offence is disclosed or not and onlythereafter FIR would be registered. Therefore, such a preliminary enquirywould be in the interest of the alleged accused also against whom thecomplaint is made.

9.2 Even as held by this Court in the case of Superintendent ofPolice, CBI v. Tapan Kumar Singh (2003) 6 SCC 175, a GD entryrecording the information by the informant disclosing the commission ofa cognizable offence can be treated as FIR in a given case and thepolice has the power and jurisdiction to investigate the same. However,in an appropriate case, such as allegations of misconduct of corruptpractice by a public servant, before lodging the first information reportand further conducting the investigation, if the preliminary enquiry isconducted to ascertain whether a cognizable offence is disclosed or not,no fault can be found. Even at the stage of registering the FIR, what isrequired to be considered is whether the information given discloses thecommission of a cognizable offence and the information so lodged mustprovide a basis for the police officer to suspect the commission of acognizable offence. At this stage, it is enough if the police officer on thebasis of the information given suspects the commission of a cognizableoffence, and not that he must be convinced or satisfied that a cognizableoffence has been committed. Despite the proposition of law laid downby this Court in catena of decisions that at the stage of lodging the firstinformation report, the police officer need not be satisfied or convincedthat a cognizable offence has been committed, considering the AB

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Aobservations made by this Court in the case of P. Sirajuddin (supra)and considering the observations by this Court in the case of LalitaKumari (supra) before lodging the FIR, an enquiry is held and/orconducted after following the procedure as per Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual, it cannot be saidthat the same is illegal and/or the police officer, Anti-corruption BureauBhas no jurisdiction and/or authority and/or power at all to conduct suchan 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 appellantand his three brothers, wherein various allegations have been made againstCthe appellant with regard to accumulating the assets disproportionate tohis known sources of income. At that time, the appellant was a Memberand President of the Municipal Council, Katol, District Nagpur. On thebasis of the said complaint, the Superintendent of Police, Anti-corruptionBureau, Nagpur initiated a discrete enquiry against the appellant with

Dregard to the allegations in the complaint through the officers workingunder him. After conducting a discrete enquiry, report dated 27.2.2020has been submitted to the Superintendent of Police, ACB, Nagpur. Afterscrutiny of the said report, the same has been forwarded to the DirectorGeneral of Police, ACB. After considering the report, the Director Generalof Police, ACB had directed the Superintendent of Police who in turnEhad directed the Police Inspector, ACB, Nagpur to conduct an ‘openenquiry’ and during the course of conducting an ‘open enquiry’, theappellant against whom the allegations are made of accumulating theassets disproportionate to his known sources of income, which can besaid to be an offence under Section 13(1)(e) of the PC Act, has beenFserved with the impugned notice, impugned before the High Court. Adetailed 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 perpara 14 of the said Manual and the ‘open enquiry’ is permissible as perpara 15 of the said Manual. While conducting open enquiries, the enquiryGofficer who is conducting the ‘open enquiry’ is required to follow thefollowing instructions:

(a) As soon as an application or information is received by himfor making an open enquiry, it should be entered in theEnquiry Register and further developments recorded in itH

from time to time. (For proforma of the Register seeAppendix XX). The number of the file allotted to the enquiryshould be cited in all references.

(b) The contents of the application or information should bescrutinized carefully and various allegations contained thereinbe 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 theenquiry to the Director.

(e) The statement of the applicant should be recorded nothingtherein all the circumstances within his knowledge withregard to the allegations.

(f) The statements of all the witnesses whose names mighttranspire during the examination of the applicant and alsoof other witnesses, if any, should be recorded.

(g) All available documentary evidence in support of theallegation should be collected.

(h) The statement of the person against whom the allegationshave been made should be recorded, giving him anopportunity to explain each allegation against him. Theapplication should not be shown to him in any circumstances.The name of the applicant should not be disclosed, if theapplicant so expressly desires.

(i) The statements of all persons cited in defence should berecorded and the relevant documentary evidence collected.

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A(j)After recording the evidence of both the sides and collectingthe necessary documents, the entire record should beexamined to formulate a definite opinion on each of theallegations.

(k) The papers of enquiry, with the final report, should beBsubmitted to the Director.

(l) A copy of a ‘Roznama’ containing details showing the day-to-day progress of the enquiry should be maintained as fromthe date of the receipt of the application and attached tothe papers of enquiry and the final report.

C10.1 After completing the enquiry, a final report along with thepapers of the enquiry is required to be sent to the Director General,ACB. Even, while submitting the final report and the papers of theenquiry, which are the points to be considered and/or borne in mind arestated in para 16 of the Manual. Only thereafter and if it is found that aDcognizable offence is made out and there is substance in the allegations,an FIR would be lodged and further investigation will be carried outafter following the procedure as per the Code of Criminal Procedure.Therefore, a fool proof safeguard and procedure is provided beforelodging an FIR/complaint before the Court against the public servant,who is facing the allegations of corrupt practice. However, as observedEhereinabove, such an enquiry would be conducted to ascertain whethera cognizable offence is disclosed or not. As observed hereinabove, evenat the stage of registering the first information report, the police officeris not required to be satisfied or convinced that a cognizable offence hasbeen committed. It is enough if the information discloses the commissionFof a cognizable offence as the information only sets in motion theinvestigative 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-registrationof FIR stage in the case of allegation of corrupt practice of accumulatingassets disproportionate to his known sources of income, cannot be saidGto be per se illegal.

11. However, the next question posed for the consideration of thisCourt is, whether to what extent such an enquiry is permissible andwhat would be the scope and ambit of such an enquiry. By the impugnednotice, impugned before the High Court, and during the course of theH

‘open enquiry’, the appellant has been called upon to give his statementand he has been called upon to carry along with the information on thepoints, which are referred to hereinabove for the purpose of recordinghis statement. The information sought on the aforesaid points is having adirect 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 berestricted to facilitate the appellant to clarify regarding his assets andknown sources of income. The same cannot be said to be a fishing orroving enquiry. Such a statement cannot be said to be a statement underSection 160 and/or the statement to be recorded during the course ofinvestigation as per the Code of Criminal Procedure. Such a statementeven cannot be used against the appellant during the course of trial.Statement of the appellant and the information so received during thecourse of discrete enquiry shall be only for the purpose to satisfy andfind out whether an offence under Section 13(1)(e) of the PC Act, 1988is disclosed. Such a statement cannot be said to be confessional incharacter, and as and when and/or if such a statement is considered tobe confessional, in that case only, it can be said to be a statement whichis 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 caseas such the appellant has produced the relevant documents of some ofthe properties owned by him and the appellant has joined the ‘openenquiry’. It also appears from the counter filed on behalf of the Anti-corruption Bureau that on the basis of the information given by theappellant, letters have been issued to various authorities/banks, seekingfurther and better particulars. Partial statement of the appellant hasalready been recorded. However, as observed hereinabove, such astatement/enquiry would be restricted only to ascertain whether acognizable offence is disclosed or not. Such a statement cannot be saidto be a confessional statement. After having been satisfied and afterconclusion of the enquiry and on the basis of the material collected, if itis found that there is substance in the allegations against the appellantand it discloses a cognizable offence, FIR will be lodged and theinvestigating agency has to collect the evidence/further evidence tosubstantiate the allegations/charge of accumulating the assetsdisproportionate to his known sources of income. However, if during theenquiry at pre-registration of FIR stage, if the appellant satisfies onproduction of the materials produced relating to his known sources of AB

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Aincome and the assets, in that case, no FIR will be lodged and if he is notable to clarify his assets, vis-à-vis, known sources of income, then theFIR 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 avoidfurther harassment to him.

B13. In view of the above and for the reasons stated above, we seeno reason to interfere with the impugned judgment and order passed bythe High Court and we dismiss the appeal with the above observationsand clarifications that the statement of the appellant on the pointsmentioned in the impugned notice would be only to satisfy whether acognizable offence is disclosed or not and so as to enable the appellantCto clarify the allegations made against him with respect to accumulationof assets disproportionate to his known sources of income and the sameshall not be treated as a confessional statement.

14. Appeal is accordingly dismissed with the above clarifications/observations.

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Devika Gujral

Appeal dismissed.

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