THE STATE OF CHATTISGARH & ANR versus AMAN KUMAR SINGH & ORS. ETC. ETC on 1 March 2023

134

SUPREME COURT REPORTS

[2023] 2 S.C.R.

ATHE STATE OF CHATTISGARH & ANR.

v.

AMAN KUMAR SINGH & ORS. ETC. ETC

(Criminal Appeal Nos. 646-648 of 2023)

B MARCH 01, 2023

[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]

Constitution of India – Art.226 – Prevention of CorruptionAct, 1988 – ss.13(1)(b), (2) – FIR registered against one ‘AS’ andhis wife ‘YS’ – FIR quashed by High Court – Justification of – Held:CIn the present case, FIR does make out a case of cognizable offencehaving been committed by ‘AS’ and ‘YS’ – Power of quashing acriminal proceeding should be exercised very sparingly and withcircumspection and that too in the rarest of rare cases – Wheneverits powers are invoked either u/Art.226 or s.482, CrPC for quashingDan FIR/complaint, the Courts would not be justified in embarkingupon an enquiry as to the probability, reliability or genuineness orotherwise of the allegations made therein – An FIR can be registeredmerely on suspicion thus, the High Court ought to have realizedthat the FIR which according to it was based on “probabilities”ought not to have been interdicted – An FIR based on “probability”Eof a crime having been committed is of a higher degree as comparedto the one lodged on a “mere suspicion” that a crime has beencommitted – Extraordinary or inherent powers do not confer anarbitrary jurisdiction on the court to act according to its whim orcaprice – High Court erred in quashing the FIR – ImpugnedFjudgment set aside – Code of Criminal Procedure, 1973 – s.482 –Penal Code, 1860 – s.120-B.

Prevention of Corruption Act, 1988 – Disproportionate assetscase – FIR registered against one ‘AS’ and his wife ‘YS’, publicservants – Political vendetta alleged against ‘AS’, who was theGPrincipal Secretary to the Chief Minister in the previous regime –Held: Allegations levelled were vague and general – Mala fidemotives are required to be affirmatively pleaded and proved –However, if criminal prosecution is based upon adequate evidenceand the same is otherwise justifiable, it does not become vitiated onaccount of significant political overtones and mala fide motives –H

THE STATE OF CHATTISGARH & ANR. v. AMAN KUMARSINGH & ORS. ETC. ETC

No cogent grounds for quashing the FIR in the present case evenon the ground of mala fide.

Prevention of Corruption Act, 1988 – Quashing of FIR –Approach of High Courts – Held: Considerations that apply toquashing of FIRs pertaining to offences punishable under generalpenal statutes ex proprio vigore may not be applicable to a P.C. Actoffence – In cases under the P.C. Act, the proper course for thehigh courts would be to permit the investigation to be taken to itslogical conclusion and leave the aggrieved party to pursue theremedy made available by law at an appropriate stage.

Prevention of Corruption Act, 1988 – Disproportionate assetscase – Importance of preliminary enquiry – Discussed.

Criminal Law – Inept drafting of FIR – Effect of – Discussed.

Allowing the appeals, the Court

Conclusion

HELD: 1.1 The complaint lodged with the Chief Ministerdoes specifically allege that although AS came from a very humblebackground, as evident from his Annual Property Return filed atthe time of joining IRS, “he has managed to amassdisproportionate assets of more than 2500 crores contrary to hislegal sources of income”. One could view it as a tall claim, whichis thoroughly unsubstantiated. However, it cannot be wished awaybecause of the revelations of the preliminary inquiry which led toregistration of the FIR and have formed part thereof. Although itis true that it is for the prosecution to build up a case that AS, asa public servant, amassed such wealth or even wealth of any lesservalue that is disproportionate to his known sources of income,and which could not satisfactorily be accounted for by him, whileit files the police report, it does not seem to be a requirement oflaw when the FIR was registered on 25th February, 2020 thatfacts and figures with exactitude need to form part of a firstinformation report. It is found on perusal of the FIR that althoughnot specifically mentioned, 2004 to 2018 is the “check period”during which AS and YS have acquired property disproportionateto their known sources of income. There are certain calculationsprojecting the quantum of money that both AS and YS receivedtowards salaries, interest and value for properties sold. It is truethat the FIR could have been drafted better. Since a first A

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Ainformation report is the starting point for a long drawninvestigative process and such an investigation could be scuttledby an accused taking advantage of inept drafting of such report,this is an area where all the more care and dexterity is called forto prevent many a thing. However, nothing significant turns onthe inept drafting of the FIR in this case since it does make out aBcase of cognizable offence having been committed by AS and YS.Indeed, if at all there are miscalculations arising out of arithmeticalerrors or misdescription of properties not belonging to AS andYS, they were/are free to point it out while joining theinvestigation. It is also open to them to point out to theCinvestigating officer that there has been absolutely no suppressionor non-disclosure of 31 properties/assets and also that no activityamounting to ‘criminal misconduct’ had been committed by them.However, they chose to challenge the FIR on the specious groundthat the same did not disclose a cognizable offence. [Paras 54-56][155-D-H; 156-G-H; 157-A-B]D

1.2 While deciding the challenge to the FIR, the High Court– unwittingly, did not bear in mind the note of caution in BhajanLal to the effect that the power of quashing a criminal proceedingshould be exercised very sparingly and with circumspection andthat too in the rarest of rare cases; further that, the court will notEbe justified in embarking upon an enquiry as to the reliability orgenuineness or otherwise of the allegations made in the FIR orthe complaint; and also that, the extraordinary or inherent powersdo not confer an arbitrary jurisdiction on the court to act accordingto its whim or caprice. Whenever its powers are invoked eitherFunder Article 226 of the Constitution or section 482, Cr. P.C. forquashing a first information report/complaint, the courts wouldnot be justified in embarking upon an enquiry as to the probability,reliability or genuineness of the allegations made therein. Thus,it being the settled principle of law that when an investigation isyet to start, there should be no scrutiny to what extent theGallegations in a first information report are probable, reliable orgenuine and also that a first information report can be registeredmerely on suspicion, the High Court ought to have realized thatthe FIR which, according to it, was based on “probabilities” oughtnot to have been interdicted. Viewed through the prism of gravityHof allegations, a first information report based on “probability” of a crime having been committed would obviously be of a higherdegree as compared to a first information report lodged on a “meresuspicion” that a crime has been committed. The High Courtfailed to bear in mind these principles and precisely did what itwas not supposed to do at this stage. No reason to invalidate theFIR for alleged breach of the CBI Circular. The High Court wasnot justified in its interference with the investigative process andcommitted an error of law in quashing the FIR on the grounds itdid. [Paras 58, 59, 61 and 65][157-E-F, G-H; 158-E-H; 159-H]

State of Maharashtra v. Ishwar Piraji Kalpatri (1996)1 SCC 542 : [1995] 5 Suppl. SCR 812 – relied on.

1.3 In the writ petitions filed by AS and YS, the pleadingsare insufficient to return a finding that the FIR is an outcome ofmala fide. No doubt, certain allegations are levelled against theGovernment and the Chief Minister; however, such allegationsare vague and general in nature. Mala fide motives are requiredto be affirmatively pleaded and proved. However, no foundationin that behalf has been laid and naturally so, the High Court evendid not examine whether exception could have been taken to theFIR on the ground of mala fide. Neither the head of the politicalexecutive (the incumbent Chief Minister) nor that of theadministrative executive (the Chief Secretary) was personallyarrayed as a party to any of the proceedings. The person againstwhom mala fide or bias is imputed should be impleaded as a partyrespondent to the proceedings eo nomine and that in his/herabsence no inquiry into the allegations can be made. When aninformation is lodged at the police station and an offence isregistered in respect of a disproportionate assets case, it is thematerial collected during the investigation and evidence led incourt that is decisive for determining the fate of the accused.Whether the first information report is the outcome of mala fidewould be of secondary importance. In such a case, should theallegations of mala fide be of some prima facie worth, would paleinto insignificance if sufficient materials are gathered for sendingthe accused up for a trial; hence, the plea of mala fide may notper se form the basis for quashing the first information report/complaint. If criminal prosecution is based upon adequate AB

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Aevidence and the same is otherwise justifiable, it does not becomevitiated on account of significant political overtones and mala fidemotives. [Paras 71][161-A-G]

State of Bihar v. P.P. Sharma (1992) 1 Supp SCC 222 :[1991] 2 SCR 1 – relied on.

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1.4 The first information report in a disproportionate assetscase must, as of necessity, prima facie, contain ingredients forthe perception that there is fair enough reason to suspectcommission of a cognizable offence relating to “criminalmisconduct” punishable under the P.C. Act and to embark uponCan investigation. Having regard to what has been observed inparagraph 49 and to maintain probity in the system of governanceas well as to ensure that societal pollutants are weeded out at theearliest, it would be eminently desirable if the high courts maintaina hands-off approach and not quash a first information reportpertaining to “corruption” cases, specially at the stage ofDinvestigation, even though certain elements of strong-arm tacticsof the ruling dispensation might be discernible. Theconsiderations that could apply to quashing of first informationreports pertaining to offences punishable under general penalstatutes ex proprio vigore may not be applicable to a P.C. ActEoffence. Majorly, the proper course for the high courts to follow,in cases under the P.C. Act, would be to permit the investigationto be taken to its logical conclusion and leave the aggrieved partyto pursue the remedy made available by law at an appropriatestage. If at all interference in any case is considered necessary,the same should rest on the very special features of the case.FAlthough what would constitute the special features hasnecessarily to depend on the peculiar facts of each case,interference could be made in exceptional cases where therecords reveal absolutely no materialto support even a reasonablesuspicion of a public servant having intentionally enriched himselfGillicitly during the period of his service and nothing other thanmala fide is the basis for subjecting such servant to aninvestigation. There are no cogent grounds for quashing the FIRin the present case even on the ground of mala fide. Theimpugned judgment and order is set aside and the writ petitionsare dismissed. [Paras 74-76][162-D-H; 163-A, C-D]H

THE STATE OF CHATTISGARH & ANR. v. AMAN KUMARSINGH & ORS. ETC. ETC

Lalita Kumari v. Govt. Of U.P. (2014) 2 SCC 1 : [2013]14 SCR 713 – followed.

State of Haryana v. Bhajan Lal and Ors. (1992) 1 Supp.SCC 335 : [1990] 3 Suppl. SCR 259; CBI & Ors. v.Tapan Kumar Singh (2003) 6 SCC 175 : [2003] 3 SCR485 – relied on.

State of Uttar Pradesh v. Naresh & Ors. (2011) 4 SCC324 : [2011] 4 SCR 1176; Neeharika InfrastructurePvt. Ltd. v. State of Maharashtra & Ors. 2021 SCCOnLine SC 315; Central Bureau of Investigation & Anr.v. Thommandru Hannah Vijayalakshmi @ T.H.Vijayalakshmi & Anr. (2021) SCC OnLine SC 923; R.P. Kapur v. State of Punjab [1960] 3 SCR 388; RajeshBajaj v. State (NCT of Delhi) (1999) 3 SCC 259 : [1999]1 SCR 1012 – referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 646-648 of 2023.

From the Judgment and Order dated 10.01.2022 of the High Courtof Chhattisgarh at Bilaspur in WPCR Nos. 88, 154 and 206 of 2020.

With

Criminal Appeal No. 649 of 2023.

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ASanjay R. Hegde, Kapil Sibal, Mahesh Jethmalani, Sr. Advs., ArunKumar Jaiswal, Pranjal Kishore , Gautam Narayan, Sanjeevi Seshadri,Apoorv Kurup, Ojaswa Pathak, Ms. Nidhi Mittal, Ms. Shweta Bhardwaj,Ms. Aparna Arun, Ravi Sharma, Anjani Kumar Rai, Advs. for theappearing parties.BThe Judgment of the Court was delivered by DIPANKAR DATTA, J.

Leave granted.

2. These 5 (five) appeals are at the instance of, inter alia, theCState of Chhattisgarh (hereafter ‘the State’, for short) and Sri UchitSharma (hereafter ‘US’, for short). The appellants call in question acommon judgment and order dated 10[th] January, 2022 passed by theChhattisgarh High Court at Bilaspur, whereby 3 (three) writ petitions[WPCR 88 of 2020, WPCR 154 of 2020 and WPCR 206 of 2020] weredisposed of. WPCR 88 of 2020, presented by Sri Aman Singh (hereafterD‘AS’, for short), was allowed by quashing FIR No. 9/2020 dated 25[th]February, 2020 (hereafter ‘the FIR”, for short) under section 13(1)(b)and (2), Prevention of Corruption Act, 1988 (hereafter ‘P.C. Act”, forshort) read with section 120B, Indian Penal Code (hereafter ‘IPC”, forshort), registered by the Economic Offences Wing/Anti-CorruptionEBureau of the State. WPCR 154 of 2020, instituted by the wife of AS,Smt. Yasmin Singh (hereafter ‘YS’, for short), was partly allowed. Thespouses were the joint petitioners in WPCR 206 of 2020, which wasalso allowed.

3. A complaint dated 11[th] October, 2019 was lodged by US in theFoffice of the Chief Minister of the State. It was alleged therein that AS[an Indian Revenue Service (IRS) officer and the former PrincipalSecretary to the erstwhile Chief Minister of Chhattisgarh], his wife YS,[former consultant to the Govt. of Chhattisgarh, who had worked oncontract as the Director, Communication and Capacity DevelopmentUnit (CCDU), Department of Public Health Engineering, Govt. ofGChhattisgarh from 14[th] November, 2005 to 31[st] March, 2015, and asDirector, ICE & Capacity Building, Dept. of Panchayat & RuralDevelopment, Govt. of Chhattisgarh from 1[st] April, 2015 to 10[th]December, 2018] and his family were involved in corruption and moneylaundering, and that he also held assets which are disproportionate to hisknown sources of income.H

4. Upon the complaint being received, the Chief Minister by ahandwritten order directed the Chief Secretary of the State to have thecomplaint enquired into by the Economic Offences Wing (EOW).Although, the date “14[th] OCT, 2019” appears just above the handwrittenorder of the Chief Minister, it is not too clear whether he made suchorder on 14[th] October, 2019 or on 15[th] October, 2019.

5. Be that as it may, vide a forwarding letter dated 21[st] October,2019, the complaint was forwarded by the General AdministrationDepartment of the State (hereafter ‘GAD’, for short) to the EconomicOffences Wing/Anti-Corruption Bureau (hereafter ‘ACB/ EOW’, forshort) for the purpose of conducting inquiry into the allegations leveledtherein. Acting in furtherance of the said letter dated 21[st] October, 2019,the ACB/EOW registered a preliminary inquiry bearing no. P.E.35/2019.

6. Prior to these developments, YS had invoked the writ jurisdictionof the High Court by instituting a writ petition [W.P. (S)6521/2019],essentially questioning a departmental inquiry initiated against her. Shehad prayed for quashing and/or setting aside of an order dated 10[th] May,2019 whereby the GAD had instituted an inquiry against her. Such inquiryappears to have been initiated on the basis of a complaint dated 12[th]April, 2019 lodged by one Vikas Tiwari (spokesperson of the Chhattisgarhunit of the Indian National Congress party). With the initiation of P.E.35/2019, in terms of the letter dated 21[st] October, 2019, YS filed an interimapplication (I.A.04/2020) seeking a stay thereof. By an order dated 16[th]January, 2020, the High Court directed the State not to take any steps toher prejudice pursuant to the letter dated 21[st] October, 2019. The orderof 16[th] January, 2020 refers to, inter alia, an earlier order dated 21stOctober, 2019 which, however, is not on record.

7. The letter dated 21[st] October, 2019 of the GAD, referred toabove, was also challenged by AS by instituting a writ petition [WPCR88/2020] before the High Court on 29[th] January, 2020. In such writ petition,AS urged the court to pass an order for production of the entire recordspertaining to the letter dated 21[st] October, 2019 for its perusal, for quashingthe said letter as well as any consequential step/action taken by theState including P.E.No.35/2019.

8. During the pendency of WPCR 88/2020, the FIR was registeredagainst AS and YS.

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A9. Within a few days of registration of the FIR, on 28[th] February,2020 to be precise, AS applied for an amendment of WPCR 88/2020seeking to mount a challenge to the FIR. He had also applied for interimrelief for stay of effect/operation of the FIR.

10. YS too, on 2[nd] March, 2020, instituted WPCR 154/2020 seekingBan order, inter alia, for quashing of the FIR.

11. By an order dated 28[th] February, 2020, the High Court allowedthe application for amendment and also directed that no coercive stepsbe taken against AS till the next date of hearing.

12. On 15[th] April, 2020, WPCR 206/2020 was jointly instituted byCAS and YS seeking appropriate order for listing of WPCR 88/2020 andWPCR 154/2020 for final hearing immediately upon resumption of normalfunctioning of the Court (which was then curtailed due to the pandemiccaused by Covid-19) and also for an order declaring the action of theACB/EOW in directing HDFC Bank Ltd., respondent no.5, to put a holdDon the funds in the salary account of AS, as void and illegal.

13. We need not at this stage refer in detail to the interveningevents of issuance of notice to AS to join the investigation as well asinterim orders passed on the writ petitions from time to time. Suffice it tonote, in an order dated 6[th] September, 2021, the High Court observedEthat there was a dispute with regard to the income of AS and YS and theACB/EOW was called upon to produce the case diary as well as figuresin tabulated form showing income and expenditure for perusal by theCourt whether there is disproportionate income or not.

14. Faced with such an order, the State filed an application seekingFexemption to produce the case diary and the figures in tabulated form aswell as applied for vacation of an earlier order dated 28[th] February, 2020whereby the ACB/EOW was restrained from taking coercive stepsagainst AS. The fate of these applications does not clearly appear fromthe records. However, for the reasons recorded in the impugned judgmentand order dated 10[th] January, 2022, the High Court while allowing WPCRG88/2020 quashed the FIR. In view of the FIR having been quashed, theHigh Court held that relief sought by YS in WPCR 154/ 2020 in relationto the FIR had lost its significance. However, the Court rejected theprayer of YS to prosecute US, the original complainant and J.P. Kujur,the Investigation Officer, under section 211, IPC. WPCR 154/2020, thus,stood partly allowed. Insofar as WPCR 206/2020 is concerned, the CourtH

made the following directions in paragraph 70:

“70. Since this Court while hearing WPCR No. 88 of 2020 hasalready quashed the FIR bearing No. 09/2020 registered againstthe petitioners at Police Station- EOW/ACB, District- Raipur (C.G.),therefore, the relief sought in this petition has lost its significanceand the bank account No. 50100 28338 9868 of petitioner No. 1shall inoperative (sic) after quashing the FIR in WPCR No. 88 of2020, therefore, no further direction is required to be passed.”

15. Since, the High Court has quashed the FIR and we are calledupon to examine the legality and propriety of the impugned judgment,we propose to refer to the material portions of the FIR after noting therival contentions.

16. Mr. Sibal, learned senior counsel appearing in support of theappeals preferred by the State, contended that the High Court committedgross error of law in quashing the FIR by transgressing the legal boundsfor quashing a first information report. Placing reliance on the decisionof this Court in CBI & Ors. Vs. Tapan Kumar Singh[1], he contendedthat a first information report is not an encyclopedia which must discloseall facts and details relating to the offence reported; what is of significanceis that the information given must disclose the commission of a cognizableoffence and the information so lodged must provide the basis for thepolice to suspect the commission of a cognizable offence. At the stageof registration of a first information report, the police officer on the basisof the information given has to suspect the commission of a cognizableoffence and not that he must be convinced or satisfied that a cognizableoffence has been committed. If he has reasons to suspect on the basisof the information received that a cognizable offence may have beencommitted, he is bound to record the information and investigate, withoutit being necessary for him to satisfy himself about the truthfulness of theinformation.

17. According to Mr. Sibal, when a first information report couldbe lodged on the basis of suspicion, the High Court in the present caseerred in law in quashing the FIR on the ground that it was based on“probabilities”. Criticizing the impugned judgment as wanting inappreciation of the aforesaid basic principle, he urged that the High Courtoverstepped its limits.

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A18. Mr. Sibal also contended that in the present case, AS challengedthe FIR a few days after the same was registered on 25[th] February,2020 and obtained an order from the High Court to the effect that nocoercive steps be taken against him. Armed with such an order, AS didnot join the investigation despite a notice having been issued. There wasno order staying the investigation. Even if the investigation had proceeded,Bthere was no imminent fear of arrest. If indeed, AS and YS do havepapers and documents to satisfactorily account for the pecuniaryresources and property and that they do not possess assetsdisproportionate to their known sources of income, such papers anddocuments could have been produced before the Investigating OfficerCthereby enabling him to hold that there is no substance in the complaintlodged by US, and then to file an appropriate closure report before theconcerned court to be considered in accordance with Law. However,the Investigating Officer could not proceed with the investigationeffectively and meaningfully in view of the restraining orders passed bythe High Court resulting in the investigative process being aborted.D

19. Our attention was next invited by Mr. Sibal to the decisions ofthis Court in State of Uttar Pradesh Vs. Naresh & Ors.[2]andNeeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra &Ors.[3], in support of the contention that when an investigation by thepolice is in progress, the courts should not go into the merits of theEallegations in the FIR; on the contrary, the police must be permitted tocomplete the investigation. It was also contended that if after investigationthe Investigating Officer does not find any substance in the complaint/first information report, he is obliged to file appropriate closure reportbefore the concerned court for its due consideration in accordance withFlaw; however, it would be premature to pronounce any conclusion thatthe first information report does not disclose any cognizable offencebased on hazy facts.

20. Mr. Sibal, thus, prayed that the impugned judgment and orderof the High Court be set aside and investigation into the FIR be permittedGto be taken to its logical conclusion.

21. Mr. Sanjay Hegde, learned senior counsel for the otherappellant, i.e., US, contended that the High Court clearly applied a wrongtest while quashing the FIR. According to him, the test of a prima-facie 2 (2011) 4 SCC 324H3 2021 SCC OnLine SC 315

or probable case is only required to be shown at the time of framing ofcharge; however, for an investigation to proceed on the basis of a firstinformation report, all that is required to be shown is that the contents ofthe complaint/first information report, when taken at face value, makeout an offence.

22. It was further contended by Mr. Hegde that the High Courtconducted a mini-trial while arriving at a conclusion that no offenceagainst AS and YS has been made out in the FIR which, this Court hasrepeatedly held, cannot be conducted in proceedings for quashing of afirst information report. At the stage of considering a prayer for quashingof first information report, the probable defence of the accused cannotbe considered.

23. Inviting our attention to the interim order dated 6[th] September,2021 passed by the High Court, Mr. Hegde contended that such anexercise could not have been undertaken by the Court in exercise of itsjurisdiction under Article 226 of the Constitution.

24. Referring to the decision of this Court in Central Bureau ofInvestigation & Anr. Vs. Thommandru Hannah Vijayalakshmi @T.H. Vijayalakshmi & Anr.[4], Mr. Hegde submitted that a similar exercisethat was undertaken by the relevant high court was held to beimpermissible by this Court.

25. The decisions of this Court in R.P. Kapur Vs. State of Punjab[5]and State of Haryana Vs. Bhajan Lal and Ors.[6]were next cited forhighlighting the categories of cases where inherent jurisdiction can andshould be exercised by the high courts to quash proceedings; however,having regard to the facts and circumstances of the case presentedbefore the High Court by AS and YS, Mr. Hegde contended that thecourt ought to have declined interference.

26. Mr. Hegde further relied on the decision of this Court in RajeshBajaj Vs. State (NCT of Delhi)][7]for the proposition that if the factualfoundation for the offence has been laid in the complaint, the court shouldnot hasten to quash criminal proceedings during investigation stage merelyon the premise that one or two ingredients have not been stated with 4 (2021) SCC OnLine SC 923

5 (1960) 3 SCR 388

6 1992 SUPP. (1) SCC 335

7 (1999) 3 SCC 259

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Adetails. According to him, quashing of a first information report is a stepwhich is permitted only in extremely rare cases such as, the informationin the complaint must be so bereft of even the basic facts which areabsolutely necessary for making out the offence. The FIR, in the presentcase, does contain definite particulars making out the offences complainedof. That apart, the preliminary inquiry carried out before registration ofBthe FIR has revealed disproportionate assets to the tune of 20% of theincome of AS; hence, it was not an appropriate case where the power toquash the FIR should have been exercised.

27. While concluding, Mr. Hegde submitted that the High Courthaving travelled beyond the well-settled parameters of exercise ofCjurisdiction under Article 226 of the Constitution, the impugned judgmentand order merits to be set aside.

28. Mr. Mahesh Jethmalani, learned senior counsel appearing forAS and YS, opposed the appeals. Reiterating the contentions that foundfavour with the High Court, he contended that the High Court rightlyDconcluded that investigation of the FIR, which did not prima facie disclosecommission of any cognizable offence by either AS or YS, would benothing but an abuse of the process of law and compelling AS and YS tojoin the investigation would amount to undue and unnecessary harassment.

29. By referring to the facts preceding registration of the FIR,EMr. Jethmalani sought to impress us that ever since the politicaldispensation underwent a change in the State of Chhattisgarh, AS andYS have been the target of the new dispensation. Misusing the policemachinery, no stone has been left unturned to falsely implicate AS andYS. Initially a departmental inquiry was initiated against YS vide anForder dated 10[th] May, 2019 and no sooner had the High Court by anorder dated 21[st] October, 2019 granted interim protection to YS, furtheraction was taken to initiate a preliminary inquiry against AS and YS on11[th] November, 2009. That apart, quite mischievously, the FIR wassuddenly registered during the pendency of WPCR 88/2020 to renderthe same infructuous.G

30. It was thereafter contended by Mr. Jethmalani that a bareperusal of the FIR would reveal non-disclosure of the ‘check period’which is a sine qua non in a case of disproportionate assets. Further,the FIR did not disclose the basic ingredients of establishing an offenceunder section 13(1)(b) read with section 13(2) of the P.C. Act. The FIRH

also did not disclose the extent of alleged investment either in figures orin percentage.

31. Referring to the decision in T.H. Vijayalakshmi (supra), itwas Mr. Jethmalani’s endeavor to show that the investigating agency inthat case had set out/specified the extent of disproportionality in a tabularform, in rupees and percentage, in the first information report therein.The High Court, therefore, was not in error when it required the State toproduce the case diary as well as figures in tabulated form showingincome and expenditure for perusal by the Court by its interim orderdated 6[th] September, 2021.

32. Mr. Jethmalani further urged that no material being there tojustify registration of the FIR is borne out from the fact that the Statehad applied for exemption from complying with the High Court’s orderdated 6[th] September, 2021.

33. It was next argued by Mr. Jethmalani that a first informationreport based on sheer conjectural possibility of finding some more assetsin future is wholly impermissible. Law, according to him, is well settledthat a mere mention of the possibility will not entitle the ACB/EOW ofthe State to lodge a first information report and conduct investigation.Unless the first information report discloses cognizable offence, suchreport based on possibilities would become a tool of witch hunting andconsequently harassment, which would be a clear violation of Article 21of the Constitution. It was also argued that there is a casual allegation ofa criminal conspiracy between AS and YS without there being a whisperabout its basic elements.

34. Mr. Jethmalani further contended that even if it is assumedthat 2004 to 2018 is the check period, it is clear that a fishing inquiry isintended by the State and its officers with a view to scandalize AS andYS.

35. It was also the contention of Mr. Jethmalani that there hasbeen no disproportionality at all, which would warrant an investigationeven into the allegations leveled by US in the complaint, or for that matter,the FIR, and the High Court was right in its interference to preventabuse of the process of law.

36. The contention of the respondents that the High Court hadapplied a ‘non-existent legal test’ was refuted by terming it as entirelymisleading. Passages from the impugned judgment were referred to, to AB

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Ashow how the High Court was right in returning the finding that the FIRdid not disclose any offence rendering it liable to interdiction.

37. While concluding, Mr. Jethmalani contended that there wasno material to justify registration of the FIR and that there being no‘legitimate prosecution’, the same has rightly been quashed and set asideBby the impugned judgment; hence, the appeals are liable to be dismissed.

38. The High Court did not in the impugned judgment assign malafide as a ground for quashing the FIR. In course of hearing before us,Mr. Jethmalani attempted to build up a case of mala fide by referring tohow the incumbent Chief Minister perceived AS to be a ‘super CM’ andCalso that AS has become the victim of political vendetta, being caught inthe crossfire between the incumbent Chief Minister and the former ChiefMinister. Reference was made to clause (7) of paragraph 102 of thedecision in Bhajan Lal (supra), where it was held that a first informationreport could be quashed by the high courts “where a criminalproceeding is manifestly attended with mala fide and/or where theDproceeding is maliciously instituted with an ulterior motive forwreaking vengeance on the accused and with a view to spite himdue to private and personal grudge”.

39. In his rejoinder, Mr. Hegde canvassed that there are nopleadings to this effect in the writ petition filed before the High CourtEand, therefore, a new case ought not to be allowed to be set up de horsthe pleadings. The immediate reaction of Mr. Jethmalani was that thewrit petitions are replete with allegations of mala fide, which form theplinth for registration of the FIR as well as the departmental inquiryagainst YS.F40. Before reserving judgment, we had permitted Mr. Jethmalanito file short written notes of arguments within a week together with afew other relevant documents which he intended to file though not partof the pleadings before the High Court or this Court.

41. The written notes together with documents annexed theretoGmarked as annexures R/1A to R/1K have been considered.

42. In Part 1 of the written notes, reference has been made toCircular No. 29/2020 of the Central Bureau of Investigation (hereafter‘CBI’, for short) providing the methodology for registering firstinformation reports in cases of disproportionate assets and for conductingHinvestigation. The contention advanced is that the FIR, in the present case, does not conform to the guidelines laid down by the CBI in CircularNo. 29/2020 (hereafter ‘CBI Circular’, for short). Part II centers aroundthe contention that the FIR contains several statements styled as facts,which were false to the knowledge of the ACB/EOW of the State. Thethird and final part is dedicated to “fabrications and manipulations” inthe FIR which were the result of political vendetta against AS, who wasthe Principal Secretary to the Chief Minister in the previous regime.

43. We ought to place on record that little over a week of reservingjudgment, on 20[th] January, 2023 to be precise, Mr. Vikas Singh, learnedsenior counsel mentioned the criminal appeals and prayed for recall ofthe order reserving judgment on the ground that an application fordirections was in the process of being filed by AS and YS and that thesame ought to be considered before the judgment on these appeals ispronounced. Orally, we permitted the application to be filed for beingtaken into consideration at an appropriate time.

44. The application, which has since been filed on 20[th] January,2023, refers to certain newspaper reports and WhatsApp messages/chats exchanged allegedly between important functionaries of theGovernment of Chhattisgarh and based thereon it has been the contentionthat there exists conclusive material in public domain establishing thatthe FIR against AS and YS has been registered at the behest of one SriAnil Tuteja and other high- ranking public officials in the State, at theinstance of the present Chief Minister. Since the materials brought onrecord by such application are sufficient to drive home the conclusionthat political vendetta is the real cause for registration of the FIR, totarnish the reputation of AS and YS, it has been urged that all the evidenceought to be summoned by this Court for just disposal of the presentproceedings. Such application contains the following prayers:

“PRAYER

In the facts and circumstances stated hereinabove, this Hon’bleCourt may graciously be pleased to:

a) Direct to take on record the new facts and materials, as hasemerged from the news report dated 18.01.2023 (titled “TheChhattisgarh Files: Docs, Chats show how prime accused washimself ‘managing’ NAN scam investigation, Baghel issuedhitlist’ to implicate Raman Singh, others’) in the web newsportal www.opindia.comand direct further hearing in the present AB

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b) Direct to summon the records pertaining to the ‘WhatsApp’Chats relating to the conspiracy to implicate the Respondent Nos.1 & 4 from the Enforcement Directorate; and/or

c) Direct to summon the records of the Preliminary Enquiry bearingBNo. 35 of 2019 initiated by the Petitioner- State’s EOW/ACB inrespect to the complaint made by Respondent No. 2 on 11.10.2019;and/or

d) Direct to tag the present special leave petition with W.P. (Crl)No. 506 of 2021 titled ‘Directorate of Enforcement v. Anil TutejaC& Ors.’ Pending before this Hon’ble Court; and/or

e) Pass such other or further order (s) as may be deemed fit andappropriate by this Hon’ble Court in the facts and circumstancesof the present case.”

D45. We have heard the parties, perused the materials on record,and considered the decisions cited at the bar.

46. The High Court, upon perusal of the FIR and consideration ofthe arguments advanced by the parties as well as the decisions cited atthe Bar, recorded in the impugned judgment, inter alia, as follows: - E“49. From bare perusal of the FIR, the allegation of disproportionateincome is made out or not, it is expedient for this Court to examinewhether from bare perusal of the contents of FIR, offence said tohave been committed is made out or not, then only the FIR can bequashed by this Court. Therefore, whether the prima facie caseis made out or not, has to be seen. This Court in foregoingFparagraphs has extensively quoted the FIR, which clearlydemonstrates that the FIR is based on probabilities with regard todisproportionate income. The FIR is silent with regard to quantumof the disproportionate income, which is the paramount factorsfor involving any person in implicating any person for commissionGof offence under Section 13(1)(b), 13(2) of the Act, 1988. Thesebasic ingredients are not reflected from the bare perusal of theFIR.

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56. The FIR further states that there is possibility of having variousHproperties in the name of the petitioner and his wife. The FIR

THE STATE OF CHATTISGARH & ANR. v. AMAN KUMARSINGH & ORS. ETC. ETC [DIPANKAR DATTA, J.]

further states that there is reasonable possibility that the petitionerhas invested himself for his wife and other dependent familymembers and it was also stated that there is a possibility that ahuge amount of money is being deposited in the bank account ofhis wife. The FIR nowhere discloses commission of any offencewith definite facts and figures. The FIR is based upon probabilities.As per the Act, 1988, it is for the prosecution to establish primafacie offence under Section 13(1)(b) read with Section 13 (2) ofthe Act, 1988 against Government servant by reflecting in theFIR, which is initiation of prosecution, then only, prosecution canbe started to investigate the offence as mentioned in the FIR. Inabsence of any specific allegation made in the FIR, merely onprobability, the petitioner cannot be prosecuted. The FIR has beenregistered on the basis of complaint made by one Uchit Sharma.The allegation in the FIR that the petitioner has not filed a singleAPR while being employed with the Government of Chhattisgarhdue to fear that his disproportionate assets will get exposed. Itmay seriously violate all the conduct rules of Government of Indiaand Chhattisgarh Civil Services (Conduct) Rules, 1965, but thepetitioner cannot be prosecuted for commission of offence underSection 13(1)(b) read with Section 13(2) of the Act, 1988 for non-submission of APR with the department. The FIR is not disclosingthe fact that even not disclosing the APR with the Governmentwhat disproportionate income, the petitioner has earned duringthe period from 2004 to 2018.”

47. Confined to what the High Court has held in the impugnedjudgment and order, the short question that emerges for a decision iswhether the High Court was justified in its interference with the FIR.

48. The additional question that we are called upon to answer inview of the plea of mala fide raised by Mr. Jethmalani and the contentsof the application for directions filed on behalf of AS and YS is, whetherand to what extent would a court exercising power under Article 226 ofthe Constitution or section 482 of the Code of Criminal Procedures(hereafter ‘Cr. P.C.’, for short) be justified to quash a first informationreport registered under section 13 of the P.C. Act while the policeembarks on an investigation against a public servant particularly in viewof what has been laid down in clause (7) of paragraph 102 of the decisionin Bhajan Lal (supra).

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A49. We preface our discussion, leading to the answers to the abovetwo questions, taking note of a dangerous and disquieting trend thatobviously disturbs us without end. Though it is the preambular promiseof the Constitution to secure social justice to the people of India bystriving to achieve equal distribution of wealth, it is yet a distant dream.If not the main, one of the more prominent hurdles for achieving progressBin this field is undoubtedly ‘corruption’. Corruption is a malaise, thepresence of which is all pervading in every walk of life. It is not nowlimited to the spheres of activities of governance; regrettably, responsiblecitizens say it has become a way of one’s life. Indeed, it is a matter ofdisgrace for the entire community that not only on the one hand is thereCa steady decline in steadfastly pursuing the lofty ideals which the foundingfathers of our Constitution had in mind, degradation of moral values insociety is rapidly on the rise on the other. Not much debate is required totrace the root of corruption. ‘Greed’, regarded in Hinduism as one of theseven sins, has been overpowering in its impact. In fact, unsatiated greedfor wealth has facilitated corruption to develop like cancer. If the corruptDsucceed in duping the law enforcers, their success erodes even the fearof getting caught. They tend to bask under a hubris that rules andregulations are for humbler mortals and not them. To get caught, forthem, is a sin. Little wonder, outbreak of scams is commonly noticed.What is more distressing is the investigations/inquiries that follow. MoreEoften than not, these are botched and assume the proportion of biggerscams than the scams themselves. However, should this state of affairsbe allowed to continue? Tracking down corrupt public servants andpunishing them appropriately is the mandate of the P.C. Act. “We thepeople”, with the adoption of our Constitution, had expected very highstandards from people occupying positions of trust and responsibility inFline with the Constitutional ethos and values. Regrettably, that has notbeen possible because, inter alia, a small section of individuals inductedin public service for ‘serving the public’ appear to have kept privateinterest above anything else and, in the process, amassed wealth notproportionate to their known sources of income at the cost of the nation.GAlthough an appropriate legislation is in place to prevent the cancer ofcorruption from growing and developing, wherefor maximum punishmentby way of imprisonment for ten years is stipulated, curbing it in adequatemeasure, much less eradicating it, is not only elusive but unthinkable inpresent times. Since there exists no magic wand as in fairy tales, aswish of which could wipe out greed, the Constitutional Courts owe aH

duty to the people of the nation to show zero tolerance to corruption andcome down heavily against the perpetrators of the crime while at thesame time saving those innocent public servants, who unfortunately getentangled by men of dubious conduct acting from behind the screenwith ulterior motives and/or to achieve vested interests. The task, nodoubt, is onerous but every effort ought to be made to achieve it bysifting the grain from the chaff. We leave the discussion here with thefervent hope of better times in future.

50. Insofar as the merits of the controversy is concerned, wemust necessarily begin with a reading of the relevant provisions of theP.C. Act. “Public servant” is defined in section 2(c). It is not disputedthat AS as well as YS is comprehended within such meaning. Section13(1) of the P.C. Act defines “criminal misconduct”. A public servant issaid to commit the offence of criminal misconduct if (a) he dishonestlyor fraudulently misappropriates or otherwise converts for his own useany property entrusted to him or any property under his control as apublic servant or allows any other person so to do, or (b) he intentionallyenriches himself illicitly during the period of his office. Thus, intentionalenrichment illicitly by a public servant during the period of his office is acriminal misconduct. There are two explanations in section 13(1). Thefirst explanation provides that a person shall be presumed to haveintentionally enriched himself illicitly if he or any person on his behalf, isin possession of or has, at any time during the period of his office, beenin possession of pecuniary resources or property disproportionate to hisknown sources of income which the public servant cannot satisfactorilyaccount for. The other explanation defines “known sources of income”to mean income received from any lawful sources. To attract thisprovision, the officer sought to be proceeded against must be a publicservant. He must be found to be in possession of, by himself, or throughany person on his behalf, at any time during the period of his office,pecuniary resources or property disproportionate to his known sourcesof income. If he is unable to satisfactorily account for the same, he shallbe liable to be proceeded against for having committed criminalmisconduct and suitably punished and fined if the charge is proved forsuch period, as provided in sub-section (2). Undoubtedly, this is apresumptive finding but that finding is based on three facts, viz. being a(i) public servant, (ii) if at any time during the period of his office, he hasbeen in possession, by himself or through any person on his behalf, ofpecuniary resources or property disproportionate to his known sources AB

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Aof income, then (iii) he is enjoined to satisfactorily account for the same.The offence of criminal misconduct is committed by a public servant if(ii) is proved and (iii) does not happen. Therefore, if a prosecution islaunched under sub-section (1) of section 13 of the P.C. Act and theallegation is proved at the trial, the concerned public servant is liable topunishment under sub-section (2) thereof.B

51. The law of the land abhors any public servant to intentionallyenrich himself illicitly during the tenure of his service. Increase in theassets of such a public servant tantamount to constitutionallyimpermissible conduct and such conduct is liable to be put under thescanner of the P.C. Act. The Constitution Bench of this Court in itsCdecision in Lalita Kumari Vs. Govt. of U.P.[8], inter alia, while observingthat cases in which preliminary inquiry is to be conducted would dependupon the facts and circumstances of each case, also categorized cases(though not exhaustively) where preliminary inquiry, before registrationof a first information report, could be conducted and included ‘corruptionDcases’ in such category. A preliminary inquiry or probe, we believe,becomes indispensable in a complaint of acquisition of disproportionateassets not only to safeguard the interest of the accused public servant, ifsuch complaint were lodged with some malice, but also to appropriatelyassess the quantum of disproportionate assets should there be somesubstance in this complaint.E

52. In regard to a case of the type under consideration, particularlywhen the FIR has been registered pursuant to a preliminary inquiry intothe complaint of US and is at its nascent stage, it is in course of aninvestigation that materials are required to be collected and based onsuch requisite evidence of possession of pecuniary resources or acquisitionFof assets or property disproportionate to the known sources of incomeof the concerned public servant that a police report under section 173(2),Cr. P.C. could be laid. At the stage of conducting a preliminary inquiry,exercise of investigative powers being barred, such an inquiry is intendedto facilitate the process of formation of opinion as to whether a firstGinformation report at all is required to be registered. During the tenure ofhis office under his employer, the public servant might not have evenbeen suspected of being in possession of pecuniary resources or assetsdisproportionate to his known sources of income. Such assets or resourcesmight have been held through somebody on his behalf. In such a scenario, it is indeed a difficult task for the Government - the employer - becauseof its impersonal character and the usual lethargy or indolence atGovernment levels to connect the officer with the resources or assetsillicitly acquired. To weed out corrupt public servants, the Governmenthas to engage sincere and dedicated personnel for collecting and collatingthe necessary material in this regard. If there be no interventions, theinvestigation that is likely to follow in terms of the Cr. P.C., could enablethe investigating officer to collect and collate the entire evidenceestablishing the essential links between the public servant and the propertyor pecuniary resources in dispute. Since snapping of any link in the chainof circumstances could prove fatal to the whole exercise, it is of utmostnecessity that care and dexterity are not compromised.

53. It is in the light of section 13 of the P.C. Act and the aboveprinciples that we need to read the FIR and the preceding complaint toassess whether any cognizable offence is made out against AS and, afortiori, against YS, his wife.

54. The complaint that US lodged with the Chief Minister doesspecifically allege that although AS came from a very humble background,as evident from his Annual Property Return filed at the time of joiningIRS, “he has managed to amass disproportionate assets of morethan 2500 crores contrary to his legal sources of income”. Onecould view it as a tall claim, which is thoroughly unsubstantiated. However,it cannot be wished away because of the revelations of the preliminaryinquiry which led to registration of the FIR and have formed part thereof.Although it is true that it is for the prosecution to build up a case that AS,as a public servant, amassed such wealth or even wealth of any lesservalue that is disproportionate to his known sources of income, and whichcould not satisfactorily be accounted for by him, while it files the policereport, it does not seem to be a requirement of law when the FIR wasregistered on 25[th] February, 2020 that facts and figures with exactitudeneed to form part of a first information report.

55. Moving forward, it is found on perusal of the FIR that althoughnot specifically mentioned, 2004 to 2018 is the “check period” duringwhich AS and YS have acquired property disproportionate to their knownsources of income. There are certain calculations projecting the quantumof money that both AS and YS received towards salaries, interest andvalue for properties sold. Particulars of immovable properties acquiredby AS and YS at different locations with particulars of “price” also find A

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Amention therein. It is thereafter stated that in addition to these properties,there is possibility of there being other properties in other places of thecountry in the names of AS and YS. There are also references to possibleinvestments made by AS abroad, either in his own name or in the namesof his wife and dependent members. Deposits of money in lakhs in thebank account of YS regularly have been suspected to be receipt ofBconsideration (profit) from investment of big amounts. It is also revealedfrom the FIR that Rs.1,01,83,869.00 during April, 2013 to July, 2016 andRs.75,55,058.00 during October, 2018 to November, 2019 were depositedby Cargill India Pvt. Ltd. and Courtesan Consulting Private Limited,respectively, in the bank account of YS and such financial transactionsCinvolving huge amounts prima facie appeared to be conspicuous requiringminute scrutiny. These, along with some other disclosures relating toinvolvement of AS as promoter of a ‘memorial foundation’ and YS aspartner of a firm, reveals the following contents:

“***As per the information regarding properties exceeding income,Dreceived in the inquiry, commission of a cognizable offence appearsprima facie. Keeping it in view, investigation is required so thatinformation may be obtained regarding movable and immovableproperties in addition to the aforesaid properties. There is possibilitythat information regarding not only shares, vehicles and jewelrybut also regarding Benami properties in the name of relatives,Emay be obtained. The income received lawfully by non-applicantAman Singh and Yasmin Singh during their tenure as publicservant, from year 2014 to December, 2018, was found to be Rs.3,33,71,290, in comparison to which, it was found that immenselydisproportionate expenses have been made by non-applicant AmanFSingh during the said period in his name and in the name of hiswife and dependent members, which was prima facie found tobe an offence under Sections 13(1)B, 13(2) of the Prevention ofCorruption Act, 1988 as amended by Amendment Act, 2018 andSection 120(B) of the Indian Penal Code.”

G56. It is true that the FIR could have been drafted better. Since afirst information report is the starting point for a long drawn investigativeprocess and such an investigation could be scuttled by an accused takingadvantage of inept drafting of such report, this is an area where all themore care and dexterity is called for to prevent many a thing. However,nothing significant turns on the inept drafting of the FIR in this caseH

since it does make out a case of cognizable offence having been committedby AS and YS. Indeed, if at all there are miscalculations arising out ofarithmetical errors or misdescription of properties not belonging to ASand YS, they were/are free to point it out while joining the investigation.It is also open to them to point out to the investigating officer that therehas been absolutely no suppression or non-disclosure of properties/assetsand also that no activity amounting to ‘criminal misconduct’ had beencommitted by them. However, they chose to challenge the FIR on thespecious ground that the same did not disclose a cognizable offence.

57. Based on our reading of the FIR, we are unable to appreciatethe reasons resting whereon the same has been quashed by the HighCourt. The High Court was of the opinion that (i) the FIR clearlydemonstrates that the same “is based on probabilities with regard todisproportionate income”, (ii) the FIR “is silent with regard to thequantum of disproportionate income, which is the paramount factorsfor involving any person in implicating any person for commissionof offence under Section 13(1)(b), 13(2) of the Act, 1988”, (iii) these“basic ingredients are not reflected from the bare perusal of theFIR”, (iv) the “FIR nowhere discloses commission of any offencewith definite facts and figures” and (v) “offence under Section13(1)(b), 13(2) of the Act, 1988 is not made out”.

58. While deciding the challenge to the FIR, the High Court –unwittingly, we presume – did not bear in mind the note of caution inBhajan Lal (supra) to the effect that the power of quashing a criminalproceeding should be exercised very sparingly and with circumspectionand that too in the rarest of rare cases; further that, the court will not bejustified in embarking upon an enquiry as to the reliability or genuinenessor otherwise of the allegations made in the FIR or the complaint; andalso that, the extraordinary or inherent powers do not confer an arbitraryjurisdiction on the court to act according to its whim or caprice.

59. It seems that such note of caution did not have the desiredeffect in all cases resulting in this Court, in its subsequent decisions,reemphasizing the need for the high courts to bear in mind the settledprinciple of law that whenever its powers are invoked either under Article226 of the Constitution or section 482, Cr. P.C. for quashing a firstinformation report/complaint, the courts would not be justified in embarkingupon an enquiry as to the probability, reliability or genuineness of theallegations made therein (emphasis ours). We may, in this regard, AB

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Aprofitably refer to the decision of this Court while dealing with a caseunder the P.C. Act in State of Maharashtra Vs. Ishwar Piraji Kalpatri[9].

60. Very strong reliance has been placed by Mr. Sibal on thedecision in Tapan Kumar Singh (supra). There, this Court ruled that:

“20. *** The information given disclosing the commission of aBcognizable offence only sets in motion the investigative machinery,with a view to collect all necessary evidence, and thereafter totake action in accordance with law. The true test is whether theinformation furnished provides a reason to suspect the commissionof an offence, which the police officer concerned is empoweredCunder Section 156 of the Code to investigate. If it does, he has nooption but to record the information and proceed to investigatethe case either himself or depute any other competent officer toconduct the investigation. The question as to whether the reportis true, whether it discloses full details regarding the manner ofoccurrence, whether the accused is named, and whether there isDsufficient evidence to support the allegations are all matters whichare alien to the consideration of the question whether the reportdiscloses the commission of a cognizable offence. Even if theinformation does not give full details regarding these matters, theinvestigating officer is not absolved of his duty to investigate theEcase and discover the true facts, if he can.”

61. Thus, it being the settled principle of law that when aninvestigation is yet to start, there should be no scrutiny to what extentthe allegations in a first information report are probable, reliable or genuineand also that a first information report can be registered merely onFsuspicion, the High Court ought to have realized that the FIR which,according to it, was based on “probabilities” ought not to have beeninterdicted. Viewed through the prism of gravity of allegations, a firstinformation report based on “probability” of a crime having beencommitted would obviously be of a higher degree as compared to a firstinformation report lodged on a “mere suspicion” that a crime has beenGcommitted. The High Court failed to bear in mind these principles andprecisely did what it was not supposed to do at this stage. We are, thus,unhesitatingly of the view that the High Court was not justified in itsinterference on the ground it did.

62. Mr. Hegde is also right in relying on the decisions in R.P.Kapur (supra) and Bhajan Lal (supra) that the FIR in this case did notfit into any of the categories for being quashed on the ground of notdisclosing a cognizable offence.

63. Borrowing the words of K.T. Thomas, J. (as His Lordshipthen was), it can safely be concluded that in the present case the HighCourt “sieved the complaint through a cullender of finest gauzesfor testing” the veracity of the alleged crime. This approach being clearlyimpermissible at the stage of considering a challenge to a first informationreport, we are of the considered opinion that the judgment and orderunder challenge is indefensible.

64. We now move on to consider Circular No. 29/2020 dated 12[th]November, 2020 issued by the CBI on the subject of investigation ofcases of Illicit Enrichment (possession of pecuniary resources or propertydisproportionate to known sources of income) (hereafter ‘CBI Circular’,for short). Having perused the CBI Circular, what we find is that thesame provides the methodology to guide registration of a first informationreport in relation to disproportionate assets cases. To the written notesof arguments is annexed a circular dated 12th April, 2021, by which theState has clarified that the CBI’s methodology would apply to the State’sACB/EOW as well (because the manual of the State’s ACB/EOW hasnot been notified) and also that the CBI’s methodology will apply inrespect of All India and Central Govt. Service Officers. However, thecontention on behalf of AS and YS that the methodology provided in theCBI Circular has been observed in the breach has failed to impress us.Evidently, the FIR in the present case was registered on 25[th] February,2020 whereas the CBI Circular was issued on 12[th] November, 2020,almost 9 (nine) months after the FIR was registered, and adopted by theState almost a year later. Since the CBI Circular was not in existence on25[th] February, 2020, the FIR in the present case cannot be invalidated byreference to the CBI Circular. It is only just and appropriate that theCBI Circular, having been adopted by the State, would be required to befollowed only in respect of registration of first information reportspertaining to cases of acquisition of disproportionate assets, post 12[th]April, 2021. We, therefore, see no reason to invalidate the FIR for allegedbreach of the CBI Circular.

65. We, thus, answer the first question by holding that the HighCourt was not justified in its interference with the investigative processand committed an error of law in quashing the FIR on the grounds it did.

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A66. To answer the second question, the challenge to the FIR onthe ground that it is vitiated by mala fides is taken up for consideration.

67. Allegations of ulterior motives at the behest of the politicaldispensation in power in the State and direction given by the Chief Ministerto the Economic Offences Wing to conduct an inquiry, which is per seBviolative of the law, are found in WPCR 88 of 2020 under the heading‘subject matter in brief’. Mirror images of such allegations are also foundunder the heading ‘Facts of the Case’. While amending the writ petitionand challenging the FIR and seeking an order for its quashing, AS allegedin the application for amendment as follows:

C“That the action taken by the Chief Minister on the complaintaddressed to him is patently contrary to law and in view of thesaid CM’s declared public hostility towards the petitioner as setout elsewhere in the petition, discloses malice” (paragraph 9.29).

“The lodging of the FIR during pendency of the hearing of theDpresent writ petition is further evidence of mala fides on part ofRespondent State” (paragraph 9.32).

“That the FIR is an abuse of police and state power. It is theoutcome of personal animosity of the CM of the state against thepetitioner” (paragraph 9.33).E68. Mr. Jethmalani, experienced as he is, must have sensed thatthe judgment under challenge rests on weak foundation; hence, headvanced arguments more touching upon the mala fides that worked inregistration of the FIR against AS and YS. As has been noted above,reacting to Mr. Hegde’s submission that there are no pleadings of malaFfides, he submitted that the writ petitions are replete with such pleadings.

69. As if the submissions of Mr. Jethmalani were not strong enough,we had AS and YS filing the application for directions late in the dayseeking to bring on record certain reports/messages/chats to provideproof that mala fide motive is indeed the genesis of the FIR. We havealso perused the application for directions, and more particularly theGcontents of paragraph 13 thereof.

70. For reasons more than one, we are inclined to the view thatthe writ petitions before the High Court would not have succeeded evenif the plea of mala fide were advanced and accepted as a ground ofassail to the FIR, based on what has been laid down in Bhajan LalH(supra).

71. We have perused the writ petitions filed by AS and YS andhave no hesitation to agree with Mr. Hegde that the pleadings areinsufficient to return a finding that the FIR is an outcome of mala fide.No doubt, certain allegations are levelled against the Government andthe Chief Minister; however, such allegations are vague and general innature. Mala fide motives are required to be affirmatively pleaded andproved. However, no foundation in that behalf has been laid and naturallyso, the High Court even did not examine whether exception could havebeen taken to the FIR on the ground of mala fide.

72. Secondly, neither the head of the political executive (theincumbent Chief Minister) nor that of the administrative executive (theChief Secretary) was personally arrayed as a party to any of theproceedings. Now, law is well-settled that the person against whom malafide or bias is imputed should be impleaded as a party respondent to theproceedings eo nomine and that in his/her absence no inquiry into theallegations can be made. This is what the decision in State of Bihar vs.P.P. Sharma[10]lays down. Having regard thereto, since the incumbentholding the office of Chief Minister of the State against whom mala fideis alleged is not on record, we are loath to attach any importance to theallegations of mala fide even if there be any.

73. Thirdly, it must be remembered that when an information islodged at the police station and an offence is registered in respect of adisproportionate assets case, it is the material collected during theinvestigation and evidence led in court that is decisive for determiningthe fate of the accused. To our mind, whether the first information reportis the outcome of mala fide would be of secondary importance. In sucha case, should the allegations of mala fide be of some prima facieworth, would pale into insignificance if sufficient materials are gatheredfor sending the accused up for a trial; hence, the plea of mala fide maynot per se form the basis for quashing the first information report/complaint.

74. Finally, following the above, what is of substantial importanceis that if criminal prosecution is based upon adequate evidence and thesame is otherwise justifiable, it does not become vitiated on account ofsignificant political overtones and mala fide motives. We can say withoutfear of contradiction, it is not in all cases in our country that an individual,who is accused of acts of omission/commission punishable under the10 1992 Supp. (1) SCC 222

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AP.C. Act but has the blessings of the ruling dispensation, is booked by thepolice and made to face prosecution. If, indeed, in such a case (where aprosecution should have been but has not been launched) the succeedingpolitical dispensation initiates steps for launching prosecution against suchan accused but he/she is allowed to go scot-free, despite there beingmaterials against him/her, merely on the ground that the action initiatedBby the current regime is mala fide in the sense that it is either to settlescores with the earlier regime or to wreak vengeance against theindividual, in such an eventuality we are constrained to observe that it iscriminal justice that would be the casualty. This is because, it is difficultto form an opinion conclusively at the stage of reading a first informationCreport that the public servant is either in or not in possession of propertydisproportionate to the known sources of his/her income. It would alldepend on what is ultimately unearthed after the investigation is complete.Needless to observe, the first information report in a disproportionateassets case must, as of necessity, prima facie, contain ingredients forthe perception that there is fair enough reason to suspect commission ofDa cognizable offence relating to “criminal misconduct” punishable underthe P.C. Act and to embark upon an investigation. Having regard towhat we have observed above in paragraph 49 (supra) and to maintainprobity in the system of governance as well as to ensure that societalpollutants are weeded out at the earliest, it would be eminently desirableEif the high courts maintain a hands-off approach and not quash a firstinformation report pertaining to “corruption” cases, specially at the stageof investigation, even though certain elements of strong-arm tactics ofthe ruling dispensation might be discernible. The considerations that couldapply to quashing of first information reports pertaining to offencespunishable under general penal statutes ex proprio vigore may not beFapplicable to a P.C. Act offence. Majorly, the proper course for the highcourts to follow, in cases under the P.C. Act, would be to permit theinvestigation to be taken to its logical conclusion and leave the aggrievedparty to pursue the remedy made available by law at an appropriatestage. If at all interference in any case is considered necessary, theGsame should rest on the very special features of the case. Althoughwhat would constitute the special features has necessarily to depend onthe peculiar facts of each case, interference could be made in exceptionalcases where the records reveal absolutely no materialto support even areasonable suspicion of a public servant having intentionally enrichedhimself illicitly during the period of his service and nothing other thanH

mala fide is the basis for subjecting such servant to an investigation. Wequite appreciate that there could be cases of innocent public servantsbeing entangled in investigations arising out of motivated complaints andthe consequent mental agony, emotional pain and social stigma that theywould have to encounter in the process, but this small price has to bepaid if there is to be a society governed by the rule of law. While we donot intend to fetter the high courts from intervening in appropriate cases,it is only just and proper to remind the courts to be careful, circumspectand cautious in quashing first information reports resting on mala fide ofthe nature alleged herein.

75. For the foregoing reasons, we have no option but to hold thatthere are no cogent grounds for quashing the FIR in the present caseeven on the ground of mala fide.

76. Consequently, we set aside the impugned judgment and orderand direct dismissal of the writ petitions. The appeals are, accordingly,allowed.

77. Interim protection granted earlier shall continue for a periodof three weeks, within which AS and YS may pursue their remedies inaccordance with law.

78. Parties shall bear their own costs.

79. It is, however, clarified that the observations made herein aremerely for the purpose of disposal of these appeals. Proceedingshereafter shall be taken to its logical conclusion strictly in accordancewith law.

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Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeals allowed.F

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