Supreme Court: 'Preliminary enquiry at Pre-FIR Stage is Desirable' under Prevent of Corruption Act, in Corruption Complaints against Public Officials

Supreme Court: 'Preliminary enquiry at Pre-FIR Stage is Desirable' under Prevent of Corruption Act, in Corruption Complaints against Public Officials

The Supreme Court (SC) in the case titled Charansingh (Appellant) v. State of Maharashtra & Ors. (Respondents) held that if a complaint is filed against a public servant regarding accumulation of assets disproportionate to income, that leads to an offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988 (Act) in that case 'an enquiry at the pre-FIR stage is not only permissible but also desirable'.

The SC bench comprising of Justices DY Chandrachud and MR Shah rendered its judgment after receiving an appeal against an order of Bombay High Court (HC). The Court added that after preliminary enquiry and pre-FIR stage if it is found that the complaint is bogus and has no substance then the FIR shall not be lodged.

In the instant matter, an appeal was initiated before the Top Court against the order of the Nagpur Bench of the HC. The HC had dismissed a writ petition filed challenging a notice issued by the Police Inspector, Anti-Corruption Bureau, Nagpur.

The factual background of the case is that the office of the Director General, Mumbai had received a complaint against the appellant and his three brothers, wherein various allegations had been made against the appellant regarding the accumulating the assets disproportionate to his known sources of income.

The appellant was a Member and President of the Municipal Council, Nagpur. On the basis of the said complaint, the SP, Anti-corruption Bureau, Nagpur initiated a discrete enquiry against the appellant.

After conducting a discrete enquiry a report was submitted to the SP. After scrutiny of the said report, the same has been forwarded to the DG. After considering the report, the DG had directed for an 'open enquiry' and accordingly a notice was issued to the appellant.

The appellant was asked to appear personally through the said notice before the investigating officer of the Anti-Corruption Bureau, Nagpur, to give his statement in an 'open enquiry' in respect of the property owned by him.

He was further directed to provide documents regarding his property, assets, bank statements, income tax returns. The notice issued by the police was challenged before the HC based on the ground that it was issued without any statutory force as no FIR was registered against the appellant.

It was also submitted that the said notice was issued in a purported exercise of power under Section 160 of the Criminal Procedure Code (CrPC) however; said provision shall not be applicable at all as the appellant is not a witness in the case.

The appellant further urged that there is no statutory provision that would compel anybody to give statement to the police. It was also submitted that there is no FIR against the appellant.

The Respondent- State put reliance on the case titled Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1 and submitted that such a preliminary enquiry is permissible, as held by the HC.

The HC has further observed that as the notice has been issued only for facilitating the purpose of the preliminary enquiry, it cannot be said to be bad in law. It added that it is true that by such notice a person like the appellant cannot be compelled to make his personal appearance before the officer of the Anti-Corruption Bureau.

The Court has further observed that not responding to such notice may be at the peril of the noticee himself for the reason that the officer of the Anti-Corruption Bureau may draw some adverse inference against the person not cooperating with the preliminary enquiry and it dismissed the writ petition.

An appeal was filed before the Top Court against the order of the HC that quashed the writ petition. The issue before the SC was-

Whether an enquiry at the pre-FIR stage would be legal and to what extent such an enquiry is permissible?

While answering the aforesaid issue the SC stated that if the material discloses prima facie commission of the offence then in such a case the FIR will be lodged.

It added that once the commission of offence is confirmed then the criminal proceedings will start and further investigation will be carried out in terms of the Code of Criminal Procedure (CrPC).

The Court further stated that "A preliminary enquiry would be permissible only to ascertain whether the cognizable offence is disclosed or not and only thereafter FIR would be registered. Such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made."

The SC bench said in its judgment that it should be taken into consideration the cases where a preliminary enquiry is permissible or is desirable. The Court added that if the information that is received do not disclose a cognizable offence but it only indicates the need for an inquiry, then in such a case a preliminary enquiry may be conducted to ascertain whether the cognizable offence is disclosed or not.

The SC observed that in the case of Lalita Kumari (Supra) the Court ruled that it is mandatory to register an FIR on receipt of information disclosing a cognizable offence and it is the general rule. The Court noted that in this case it was laid down that for which type and category of cases a preliminary enquiry may be made and it included corruption cases.

The Top Court also put reliance on its precedent of 1970 judgment in the case titled P Sirajuddin v. State of Madras wherein it had expressed the need for a preliminary enquiry before proceeding against public servants who are charged with corruption or misconduct.

The SC concluded that an enquiry at the pre-FIR stage is not only permissible but also desirable where the allegations are of misconduct or corrupt practice of acquiring the assets/properties disproportionate to known sources of income.

The Court while dismissing the appeal stated that "We see no reason to interfere with the impugned judgment and order passed by the High Court and we dismiss the appeal with the above observations and clarifications that the statement of the appellant on the points mentioned in the impugned notice would be only to satisfy whether a cognizable offence is disclosed or not and so as to enable the appellant to clarify the allegations made against him with respect to the accumulation of assets disproportionate to his known sources of income and the same shall not be treated as a confessional statement."