Allowed

Sri. a Srinivas v. the State by Karnataka Lokayuktha Police

Karnataka HC20 Dec 2023WP/13436/2023

Case brief

AI extract

What is this about?

The court quashed an FIR registered under the Prevention of Corruption Act for disproportionate assets, holding that the Superintendent of Police had not applied his mind to the source report before authorising investigation, violating Section 17. The order granting permission was mechanical and lacked consideration of exculpatory material, including property gifted by the petitioner's mother befo

What did the court decide?

Crime No.6 of 2022 pending on the file of VII Additional District and Sessions Judge, Tumkur stands quashed.

Sri. a Srinivas Vs the State by Karnataka Lokayuktha Police — Corruption | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF DECEMBER, 2023 BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.13436 OF 2023 (GM - RES)

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BETWEEN:

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SRI A.SRINIVAS S/O LATE ANNAYAPPA AGED ABOUT 49 YEARS R/AT NO.600/51, 5^TH MAIN, 4^TH CROSS, BANASHANKARI 1^ST STAGE, 2^ND BLOCK, BENGALURU – 560 050.

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... PETITIONER

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(BY SRI SATISH K., ADVOCATE)

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AND:

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THE STATE BY KARNATAKA LOKAYUKTHA POLICE REPRESENTED BY ITS DEPUTY SUPERINTENDENT OF POLICE TUMKUR DISTRICT, TUMKUR – 572 101.

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... RESPONDENT

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(BY SRI B.B.PATIL, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CR.P.C., PRAYING TO QUASH THE IMPUGNED FIRST INFORMATION REPORT IN CRIME NO. 06/2022 DTD 15/03/2022 REGISTERED BY THE RESPONDENT U/S 13(1)(b) R/W 13(2) OF THE PREVENTION

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OF CORRUPTION ACT, 1988 (ANNEXURE-B) AND ALL FURTHER PROCEEDINGS PURSUANT THERETO, PENDING ON THE FILE OF THE HONBLE 7^TH ADDL. DIST AND SESSIONS JUDGE, TUMKUR DIST., TUMKUR.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.08.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioner is before this Court calling in question registration of crime in Crime No.6 of 2022 for offences punishable under Section 13(1)(b) r/w 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the Act’ for short).

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Heard Sri K.Satish, learned counsel appearing for the petitioner and Sri B.B. Patil, learned Special Public Prosecutor appearing for the respondent.

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Facts, in brief, germane are as follows:-

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The petitioner is an employee of the Department of Social

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Welfare, Government of Karnataka having entered its service as a First Division Clerk on 01-04-1998. The petitioner from time to time

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has been promoted to higher echelons of office as Office Superintendent in the year 2008 and presently working as Assistant Director on in-charge basis under Rule 32 of the Karnataka Civil Service Rules (‘KCSRs’ for short). The issue in the lis does not concern the service of the petitioner. On 14-03-2022, the Inspector of Police attached to the then Anti Corruption Bureau (‘ACB’) prepares a source report against the petitioner alleging that the petitioner has amassed wealth disproportionate to the known source of income. It is upon the said source report, file is put up and placed before the Deputy Superintendent of Police of the ACB, who then permits registration of crime based upon the said source report. It then becomes a crime in Crime No.6 of 2022 for the aforesaid offences. The registration of the crime has driven the petitioner to this Court in the subject petition.

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The learned counsel appearing for the petitioner vehemently contends that the source report is prepared hurriedly and no preliminary inquiry, as contemplated in the judgment of the Apex Court in the case of LALITA KUMARI v. GOVERNMENT OF

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UTTAR PRADESH¹ is conducted. The registration of crime runs completely contrary to Section 17 of the Act. He would, therefore, seek quashment of the entire proceedings.

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Per-contra, the learned Special Public Prosecutor

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Sri B.B. Patil, representing the Lokayukta would vehemently refute the submissions by contending that non-application of mind qua registration of crime is an imaginary contention, as the documents would reveal that the source report is prepared on 14-03-2022, placed before the Competent Authority as obtaining under Section 17 of the Act and by a detailed order registration of crime is permitted. He would emphasize on the fact that disproportionate assets in the case of the petitioner is to the tune of `82,19,000/which amounts to 102.73% disproportionate to the known source of income. It is his contention that the matter has to be investigated into as there are several documents of properties found in the relatives’ house of the petitioner. He would seek dismissal of the petition.

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1 (2024) 2 SCC 1

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The learned counsel for the petitioner would join issue by contending that all the properties that are found are not the ones which belonged to the petitioner but were of other members of the family. Even otherwise, he would contend that by mere projection of such fancy figure of `82,19,000/-, the proceedings should not be permitted to be continued. He would seek to place reliance on the judgments rendered by this Court in NAVANEETH MOHAN N v. THE STATION HOUSE OFFICER AND ANOTHER² and in K.L. GANGADHARAIAH v. KARNATAKA LOKAYUKTA POLICE³ .

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I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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The afore-narrated facts are not in dispute. The issue at this juncture lies in a very narrow compass. The petitioner, an employee of Social Welfare Department of Government of Karnataka presently in the cadre of Assistant Director under Rule

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2 W.P.No.43817 of 2018 decided on 21-04-2021

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3 W.P.No.11822 of 2023 decided on 28-07-2023

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32 of the KCSRs is alleged to have amassed wealth disproportion to his known source of income. Therefore, the Inspector of Police on authorization, draws a source report against the petitioner. The source report is appended to the petition. The source report travels throughout the service of the petitioner as the check period is between 01-04-1998 till the date on which the source report is drawn. The projection in the source report is that the petitioner has amassed wealth disproportionate to the known source of income to the tune of 102.73%. The Competent Authority i.e., the Superintendent of Police of the Lokayukta accords his nod for registration of crime which then becomes a crime in Crime No.6 of 2022 for the aforesaid offence.

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The submission of the learned counsel for the petitioner is that the crime is registered contrary to the proviso to Section 17 of the Act. In the light of the said submission, it becomes necessary to notice Section 17 of the Act. Section 17 reads as follows:-

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

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(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;

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(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of Section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;

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(c) elsewhere, of a Deputy Superintendent of Police or a officer of equivalent rank,

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shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:

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Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant :

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Provided further that an offence referred to in²⁴ [ clause (b) of sub-section (1)] of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.

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(Emphasis supplied)

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The proviso to Section 17 upon which reliance is placed by the learned counsel for the petitioner directs that if a police officer not

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below the rank of an Inspector of Police is authorized by the State Government, he may also investigate any such offence without an order from the Magistrate. In the case at hand, investigation/inquiry is conducted by the Inspector of Police to prepare a source report. The source report is then looked into and accepted by the Competent Authority i.e., the Superintendent of Police and directs registration of crime. Whether the Superintendent of Police has applied his mind, as is necessary under Section 17 of the Act, as interpreted by the Apex Court in the case of STATE OF HARYANA v. BHAJAN LAL⁴ , is to be looked into. The Apex Court in the said case has held as follows:

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“114. Section 5-A(1) of the Act with the relevant provisos reads thus:

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5-A. Investigation into cases under this Act.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), no police officer below the rank, —

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(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;

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(b) in the presidency towns of Calcutta and Madras, of an Assistant Commissioner of Police;

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(c) in the presidency town of Bombay, of a Superintendent of Police; and

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4 1992 Supp (1) SCC 335

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(d) elsewhere, of a Deputy Superintendent of Police,

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shall investigate any offence punishable under Section 161, Section 165 or Section 165-A of the Penal Code, 1860 or under Section 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:

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Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant:

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Provided further that an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.”

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115. Section 5-A of the Act as it originally stood, was inserted by the Prevention of Corruption (Second Amendment) Act 59 of 1952 based on the recommendations of the committee of Members of Parliament under the chairmanship of Dr Bakshi Tek Chand. The said section as it stands now was substituted by Act 40 of 1964, the main object of which is to protect the public servant against harassment and victimisation. (See State of M.P. v. Mubarak Ali [1959 Supp 2 SCR 201 : AIR 1959 SC 707: 1959 Cri LJ 921 : (1960) 1 LLJ 36] ). In A.C. Sharma v. Delhi Administration [(1973) 1 SCC 726 : 1973 SCC (Cri) 608 : (1973) 3 SCR 477] , Dua, J. said that the scheme of this provision is for effectively achieving the object of successful investigation into the serious offences mentioned in Section 5 of the Act without unreasonably exposing the public

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servant concerned to frivolous and vexatious proceedings. A Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [(1984) 2 SCC 500 : 1984 SCC (Cri) 277 : (1984) 2 SCR 914, 941] at page 941 has observed that “Section 5-A is a safeguard against investigation of offences by public servants, by petty or lower rank police officers” .

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116. According to Section 5-A, notwithstanding anything contained in the Code, no police officer below the rank specified in clauses (a) to (d) of Section 5-A(1), shall investigate any offence punishable under Section 161, 165 or 165-A of the IPC or under Section 5 of the Act without the order of a Presidency Magistrate or a Magistrate of the first class as the case may be or make arrest therefor without a warrant. There are two provisos to that section. As per the first proviso, if a police officer not below the rank of an Inspector of Police is authorised by the State Government, either by general or special order, he may investigate any such offence without the order of a Magistrate or make arrest therefor without a warrant. According to the second proviso, an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.

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117. It means that a police officer not below the rank of an Inspector of Police authorised by the State Government in terms of the first proviso can take up the investigation of an offence referred to in clause (e) of Section 5(1) only on a separate and independent order of a police officer not below the rank of a Superintendent of Police. To say in other words, a strict compliance of the second proviso is an additional legal requirement to that of the first proviso for

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conferring a valid authority on a police officer not below the rank of an Inspector of Police to investigate an offence falling under clause (e) of Section 5(1) of the Act. This is clearly spelt out from the expression “further provided” occurring in the second proviso.

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118. A conjoint reading of the main provision, Section 5-A(1) and the two provisos thereto, shows that the investigation by the designated police officer is the rule and the investigation by an officer of a lower rank is an exception.

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119. It has been ruled by this Court in several decisions that Section 5-A of the Act is mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality but that illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where the cognizance of the case has in fact been taken and the case is proceeded to termination, the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. See (1) H.N. Rishbud and Inder Singh v. State of Delhi [(1955) 1 SCR 1150 : AIR 1955 SC 196 : 1955 Cri LJ 526] ; (2) Major E.G. Barsay v. State of Bombay [(1962) 2 SCR 195 : AIR 1961 SC 1762: (1961) 2 Cri LJ 828]; (3) Munna Lal v. State of Uttar Pradesh [(1964) 3 SCR 88 : AIR 1964 SC 28: (1964) 1 Cri LJ 11]; (4) S.N. Bose v. State of Bihar [(1968) 3 SCR 563 : AIR 1968 SC 1292: 1968 Cri LJ 1484]; (5) Muni Lal v. Delhi Administration [(1971) 2 SCC 48: 1971 SCC (Cri) 407] and (6) Khandu Sonu Dhobi v. State of Maharashtra [(1972) 3 SCC 786 : 1972 SCC (Cri) 854: (1972) 3 SCR 510]. However, in Rishbud case [(1955) 1 SCR 1150 : AIR 1955 SC 196: 1955 Cri LJ 526] and Muni Lal case [(1971) 2 SCC 48: 1971 SCC (Cri) 407] , it has been ruled that if any breach of the said mandatory proviso relating to

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investigation is brought to the notice of the court at an early stage of the trial, the court will have to consider the nature and extent of the violation and pass appropriate orders as may be called for to rectify the illegality and cure the defects in the investigation.

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120. Coming to the facts of the present case under consideration, the investigation did not proceed and could not be proceeded with, since the High Court by an interlocutory order restrained the investigation even at the initial stage, i.e. on the date when rule nisi was issued in the writ petition. Therefore, it is the appropriate stage for examination of the question as to whether the necessary requirements contemplated under Section 5-A(1) in permitting the Inspector of Police, are strictly complied with or not.

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121. For the proper understanding of the reasoning which we would like to give touching the question of the validity of the authority of appellant 3, we would like to reproduce the Government Order dated July 26, 1975 which reads as follows:

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“Haryana Government, Home Department, ORDER

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No.4816-3H-75/22965 July 26, 1975

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Conferred by the first proviso to sub-section (1) of Section 5-A of the Prevention of Corruption Act, 1947, the Governor of Haryana hereby authorises all the Inspectors of Police under the administrative control of the Inspector General of Police, Haryana to investigate offences under Section 5 of the said Act.

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S.D. Bhandari

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Secretary to Government, Haryana Home Department”

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122. The subsequent Government Order dated April 19, 1988 is on the same lines of the above government order.

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123. On the strength of the above government order of 1975, it has been rightly contended that appellant 3 (Inspector of Police), though not a designated officer has been legally authorised by the State Government in exercise of its powers under the first proviso of Section 5-A(1) to investigate the offences falling under Section 5 of the Act, namely, the offences enumerated in clauses (a) to (e) of Section 5(1) of the Act.

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124. Now what remains for consideration is whether there is any valid order of the SP permitting appellant 3 to investigate the offence falling under clause (e) of sub-section (1) of Section 5. As we have already mentioned in the earlier part of this judgment, the SP (appellant 2) has given the one word direction on November 21, 1987 ‘investigate’. The question is whether the one word direction ‘investigate’ would amount to an ‘order’ within the meaning of second proviso of Section 5 2DA(1).”

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(Emphasis supplied)

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Based upon the aforesaid reasons so rendered by the Apex Court both on law and facts obtaining before it, it is held as follows:

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“131. From the above discussion, we hold that (1) as the salutary legal requirement of disclosing the reasons for according the permission is not complied with; (2) as the prosecution is not satisfactorily explaining the circumstances which impelled the SP to pass the order directing the SHO to investigate the case; (3) as the said direction manifestly seems to have been granted mechanically and in a very casual manner, regardless of the

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principles of law enunciated by this Court, probably due to blissful ignorance of the legal mandate and (4) as, above all, the SHO has got neither any order from the Magistrate to investigate the offences under Sections 161 and 165 IPC nor any order from the SP for investigation of the offence under Section 5(1)(e) of the Prevention of Corruption Act in the manner known to law, we have no other option, save to quash that order of direction, reading “investigate” which direction suffers from legal infirmity and also the investigation, if any, so far carried out. Nevertheless, our order of quashing the direction of the SP and the investigation thereupon will not in any way deter appellant 1, the State of Haryana to pursue the matter and direct an investigation afresh in pursuance of the FIR, the quashing of which we have set aside, if the State so desires, through a competent police officer, clothed with the legal authority in strict compliance with Section 5-A(1) of the Act.”

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(Emphasis supplied)”

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The said judgment is followed by the Apex Court in the case of

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STATE INSPECTOR OF POLICE v. SURYA SANKARAM KARRI⁵

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wherein it is held as follows:

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“13. Provisions of the 1988 Act, no doubt, like

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the 1947 Act seek to protect public servant from a vexatious prosecution. Section 17 provides for investigation by a person authorised in this behalf. The said provision contains a non obstante clause. It makes investigation only by police officers of the

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5 (2006) 7 SCC 172

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ranks specified therein to be imperative in character. The second proviso appended to Section 17 of the Act provides that an offence referred to in clause (e) of sub-section (1) of Section 13, shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. Authorisation by a Superintendent of Police in favour of an officer so as to enable him to carry out investigation in terms of Section 17 of the Act is a statutory one. The power to grant such sanction has been conferred upon the authorities not below the rank of a Superintendent of Police. The proviso uses a negative expression. It also uses the expression “shall”. Ex facie it is mandatory in character. When the authority of a person to carry out investigation is questioned on the ground that he did not fulfil the statutory requirements laid down therefor in terms of the second proviso, the burden, undoubtedly, was on the prosecution to prove the same. It has not been disputed before us that the investigating officer, PW 41, did not produce any record to show that he had been so authorised. Shri K. Biswal, the Investigating Officer, while examining himself as PW 41, admitted that he had not filed any authorisation letter stating:

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“I have received the specific authorisation from SP, CBI, to register a case but I have not filed the said authorisation letter.”” (Emphasis supplied)

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What would unmistakably emerge from the afore-quoted judgments of the Apex Court is that, application of mind is sine qua non for registration of a crime under Section 17 of the Act, which would mean that the function of the Superintendent of Police is to apply his mind to the source report and permit registration of

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crime. These are the judgments relied on by the learned counsel for the petitioner to buttress his submission that there is blatant nonapplication of mind on the part of the Competent Authority i.e., the Superintendent of Police who has not applied his mind to the source report prior to registration of crime. Therefore, it becomes necessary to notice the permission granted by the Superintendent of Police to register the crime. The said document is appended to the statement of objections of the Lokayukta. The document reads as follows:

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“PROCEEDINGS OF THE SUPERINTENDENT OF POLICE, ANTI CORRUPTION BUREAU, CENTRAL RANGE, BENGALURU.

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Sub: Possession of property disproportionate to the known sources of income by Sri.A. Srinivasa, Office Superintendent, Commissioner office, Social Welfare Department, Bengaluru presently I/C Deputy Director (Infrastructure).

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Ref: Source Report submitted by Smt. Vijayalakshmi S, Police Inspector, Anti Corruption Bureau, Tumkur P.S Dated:14/03/2022.

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****

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I have gone through the source report submitted by Smt. Vijayalakshmi S, Police Inspector, Anti Corruption Bureau, Tumkur P.S relating to her receipt of credible information that Sri.A. Srinivasa, Office Superintendent, Commissioner office, Social Welfare Department, Bengaluru presently I/C Deputy Director (Infrastructure) has acquired property disproportionate to his known source of income to

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the extent of Rs.82,19,000/- and there by committed an offence under section 13(1)(b) r/w 13(2) of Prevention of corruption Act 1988.

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From the material placed before me and with application of my mind, I am satisfied that a prima-facie case is made out against Sri.A. Srinivasa, Office Superintendent, Commissioner office, Social Welfare Department, Bengaluru presently I/C Deputy Director (Infrastructure) warranting a statutory investigation for an offence under section 13(1)(b) r/w 13(2) of prevention of corruption Act 1988.

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ORDER NO.ACB/INV/CR/SP/01/2022, DATED:15/03/2022.

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Therefore by virtue of the powers vested in me under Provisions of Section 17 of the Prevention of Corruption Act 1988, I, Kala Krishnaswamy, [I.P.S] Superintendent of Police, Anti Corruption Bureau, Central Range, Bengaluru authorize Sri.Mallikarjuna Chukki S, Deputy Superintendent of Police, Anti Corruption Bureau, Tumkur District to register a case under Section 13(1)(b) r/w 13(2) of prevention of corruption Act 1988 against Sri.A. Srinivasa, Office Superintendent, Commissioner office, Social Welfare Department, Bengaluru presently I/C Deputy Director (Infrastructure) and to investigate the said case. Further I authorize Sri.Mallikarjuna Chukki S, Deputy Superintendent of Police, Anti Corruption Bureau, Tumkur District under the provisions of the section 18 of the Prevention of Corruption Act 1988 to inspect the banker's books in so far as it relates to the accounts of the persons suspected to be holding money on behalf of the said Sri.A. Srinivasa, Office Superintendent, Commissioner office, Social Welfare Department, Bengaluru presently I/C Deputy Director (Infrastructure) and to take or cause to be taken certified copies of the relevant entries there from and the bankers concerned shall be bound to assist the Police officer Sri.Mallikarjuna Chukki S, Deputy Superintendent of Police, Anti Corruption Bureau, Tumkur District in the exercise of the powers under the said section of law.

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[KALA KRISHNASWAMY, LPS]

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Superintendent of Police, Anti corruption Bureau, Central Range, Bengaluru.

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To:

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Sri.Mallikarjuna Chukki S, Deputy Superintendent of Police, Anti Corruption Bureau, Tumkur District for necessary action.”

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The afore-quoted is the order granting permission for registration of the crime. It is contended that the Competent Authority in terms of Section 17 supra , has looked into every aspect of the matter, prior to granting permission. Every aspect of the matter would mean, everything that is found in the source report. Insofar as the registration of the crime is concerned, what is found in the order supra is that, a self-serving statement that she has, on application of mind and on looking into the records, is granting permission. Major part of the order deals with freezing of the accounts of the petitioner or the members of the family and not with regard to the source report. It is in these circumstances, the averment or the contention of the petitioner that the source report is required to be quashed on the ground of non-application of mind, becomes necessary to be considered.

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The learned counsel for the petitioner contends that movable and immovable properties which were purchased by the mother of the petitioner one Smt. N. Gowramma long before the date of petitioner joining service is indicated in the source report. The indication is that, they are the properties belonging to the petitioner. The mother of the petitioner who had earlier purchased those properties had executed a gift deed in favour of the petitioner. This contention, on the basis of the records, appears to stand to reason, as the date of joining of service of the petitioner is 01-04-1998 and certain of the properties acquired, which forms the part of the source report are acquired by the mother of the petitioner long ago and is gifted to the petitioner, after him entering service. These factors have not been appropriately looked into while granting permission for registration of the crime. The case at hand is not a case of trap or the petitioner being caught redhanded, it is a case of disproportionate assets. If disproportionate assets has to be looked into, prior to registration of the crime, it has to be appropriately looked into. Answering an identical circumstance, a co-ordinate bench of this Court NAVANEETH MOHAN.N supra , has held as follows:

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“…. …. ….

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8. The whole challenge to the FIR is based on the judgment of the Hon’ble Supreme Court in Lalitha Kumari’s case referred to Supra. While holding that in some of the case to harass the parties there is chance of filing false FIRs and also in some cases the reluctant police registers the FIR in cognizable cases, the Hon’ble Supreme Court laid down certain directions for registration of FIR in para 120 of the judgment.

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9. Para 120 of the said judgment included the following directions:

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

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

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

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120.3. If the inquiry discloses the commission of a cognizable offence , the FIR must be registered . In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first information forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

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120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

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120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

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120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and

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circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

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(a) Matrimonial disputes/family disputes

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(b) Commercial offences

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(c) Medical negligence cases

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(d) Corruption cases

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

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The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.”

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(Emphasis supplied)

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10. Reading of para 120.6 of the judgment makes it clear that in corruption cases, the preliminary enquiry may be made. The word ‘‘may’’ indicates the desirability and not mere arbitrary discretion. The challenge to the FIR is on the ground that no such preliminary enquiry was conducted and in the source report, the inspector put fancy figures only for the purpose of registering the FIR to harass the petitioner and stall the promotion.

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11. To substantiate such contention, along with the petition, the copies of the sale deeds, lease deeds or title deeds relating to some of those properties are produced. Regarding item No.1 i.e., house No.67 of Ganganagar, Bengaluru, in the source report, the valuation is shown as 16 lakhs. But as per the sale deed, the said property was purchased in the year 2007 for consideration of Rs.14.5 lakhs/-. The building constructed on the said site is valued at Rs.1 Crore 50 lakhs/-. But according to the petitioner that is an inflated figure and he had informed the department about the construction of the said house.

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12. The source report states the value of item No.2 petrol bump is Rs.40 lakhs, whereas the petitioner produces the registered lease deed to show that the said property is not owned by the petitioner but taken on lease. The property at item No.3 was purchased prior to check period. The property at item No.6 is shown worth Rs.40 lakhs in the source report, but in the registered sale deed, the consideration of the same is shown as Rs.1.5 lakhs. Similarly, when source report

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states the value of item No.7 as Rs.20 lakhs, the sale deed is for Rs.1.85 lakhs.

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13. It was also contended that despite the wife of the petitioner having independent income, her income was considered as the petitioner’s income. Therefore, it was contended that if a preliminary enquiry was held calling upon the petitioner to explain the alleged disproportionate pecuniary resources that could have cleared the matter. It was also contended that if on securing the explanation of the petitioner still the respondent found that there is material to register the FIR, that could have been done.

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14. The aforesaid sale deeds and the other materials show that value of the properties quoted in the source report was much higher than the rates quoted in the title documents. Petitioner has also produced the certificate issued by the Chartered Accountant of his wife to the effect that from 1988-92 to 2017-18 every year she has paid income tax. The said document further indicates that during the said period, she has paid in all Rs.1,58,85,469/- as income tax.

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15. The source report which is part of Annexure-A submitted before Superintendent of Police, ACB, Bengaluru, the note of Superintendent of Police, ACB do not indicate that along with the said report any material was placed before him to grant permission to register the FIR and investigate the matter. In the order of Superintendent Police absolutely, there is no reference to submission of any documents along with the source report. In one stroke the Superintendent of Police says that he is convinced that it is a fit case to register the FIR and investigate the case. He does not even say that any preliminary enquiry was conducted prior to placing source report before him. Therefore, there is clear violation of the direction issued by the Hon’ble Supreme Court in Lalitha Kumari’s case in registering the FIR.

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16. In the judgment of the Hon’ble Supreme Court in Charansingh Vs. State of Maharashtra and others in Crl.A.No.363/2021 dated 24.03.2021 relied upon by the learned Spl. Public Prosecutor himself, in para 12 it was held that before registering the FIR a preliminary enquiry shall be conducted either confidential or open enquiry.

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17. It was further held that during the enquiry at pre-registration of FIR stage, if the accused satisfies producing the materials relating to his known sources of income and the assets, no FIR will be lodged. It was held that if accused is not able to clarify his assets vis-à-vis, known sources of income, then the FIR will be lodged

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and he will be subjected to investigation. It was held that such an enquiry would be to safeguard the interest of the accused also which may avoid further harassment to him.

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18. The judgment in Dineshbhai Chandubhai Patel Vs. State of Gujarat and Others in 2018 3 SCC 104 was relied upon by learned Spl. Public Prosecutor to contend that, it is sufficient if FIR discloses prima facie a cognizable offence and the High Court cannot act like an Investigating Agency nor can exercise powers like an Appellate Court. Absolutely, there is no dispute with regard to the said proposition. However, this Court also has to examine whether there was compliance of the direction issued by the Hon’ble Supreme Court in Lalita Kumari’s case. As already pointed out, there is no such compliance in the case on hand.

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19. Only for the limited purpose of finding out whether the source report was based on any material, the title deeds produced by the petitioner with regard to some of the properties mentioned above were compared and examined. The respondent cannot dispute the consideration mentioned in those registered sale deeds at this length of time. They prima facie show that without calling upon the petitioner to show the value of those properties or without any concrete basis in the source report atleast for some of the items, the fancy value are quoted.”

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The co-ordinate Bench was considering glorification of the figures in

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the source report which was the foundation to register the crime. A situation in the case at hand is identical. Therefore, those documents have not borne consideration by the Competent Authority prior to registration of the crime. This is what the Apex Court has considered interpreting Section 5-A(1) of the Act, as quoted supra . On the sole ground of the crime being registered which does not reflect application of mind and the source report projecting certain fancy figures, if further proceedings are permitted

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to continue, it would undoubtedly result in miscarriage of justice. This would however not preclude the respondent from initiating proceedings, if need arises, after conduct of a preliminary enquiry, at which point in time, it shall bear in mind the observations made in the course of the order, the judgment of the Apex Court in the case of BHAJAN LAL and the judgment of co-ordinate Bench of this

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Court in the case of NAVANEETH MOHAN N. supra.

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