Charansingh vs The State Of Maharashtra on 24 March, 2021


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Supreme Court of India

Charansingh vs The State Of Maharashtra on 24 March, 2021

Author: Hon’Ble Dr. Chandrachud

                                                                REPORTABLE
                                   IN THE SUPREME COURT OF INDIA
                                   CRIMINAL APPELLATE JURISDICTION
                                    CRIMINAL APPEAL NO.363 OF 2021
                               (Arising from S.L.P.(Criminal) No. 6764 of 2020)

          Charansingh                                                 …Appellant
                                         Vs.
          State of Maharashtra and others                             …Respondents


                                               JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 25.11.2020 passed by the High Court of Judicature at

Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 226 of

2020, by which the High Court has dismissed the said writ petition

challenging notice dated 04.03.2020 issued by the Police Inspector, Anti-

Corruption Bureau, Nagpur, calling upon the appellant to personally

remain present 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 along with the information on the points
Signature Not Verified

stated in the said notice, the appellant has preferred the present appeal.
Digitally signed by
Chetan Kumar
Date: 2021.03.24
16:38:50 IST
Reason:

1

2. That a complaint was received against the appellant in the office of

the Director General, Anti-corruption Bureau, Maharashtra State,

Mumbai on 7.2.2018, wherein various allegations have been made

against the appellant and his brothers with regard to accumulating the

assets disproportionate to his known sources of income. It appears that

at that time the appellant was a Member and President of Municipal

Council, Katol, District Nagpur. That in connection with the said

complaint, Police Inspector, Anti-corruption Bureau, Nagpur had issued a

notice to the appellant asking him to provide documents relating to his

property, assets, bank statements, income tax returns and asking the

appellant to give statement to the police.

3. Feeling aggrieved and dissatisfied with the said notice dated

04.03.2020 issued by the Police Inspector, Anti-Corruption Bureau,

Nagpur calling upon the appellant to personally remain present 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

along with the information on the points stated in the said notice, the

appellant herein preferred Criminal Writ Petition No. 226 of 2020 before

the High Court.

3.1 It was submitted on behalf of the appellant that the Police

Inspector, Anti-Corruption Bureau, Nagpur has no power to issue the

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said notice. It was also submitted that the said notice was issued in a

purported exercise of power under Section 160 Cr.P.C., however,

Section 160 Cr.P.C. shall not be applicable at all as the appellant is not a

witness in the case. It was also the case on behalf of the appellant that

there is no statutory provision which would compel any body to give

statement to the police. It was also submitted that there is no FIR

against the appellant.

3.2 On the other hand, it was the case on behalf of the State that the

appellant has been called upon to give his statement in an ‘open enquiry’

which is in the nature of preliminary enquiry. It was the complaint

received by the Anti-Corruption Bureau, Nagpur regarding amassing of

huge properties by the appellant. It was submitted that such a

preliminary enquiry is permissible, as held by this Court in the case of

Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1. Heavy

reliance was placed upon paragraphs 89, and 120 of the said decision.

After following the decision of this Court in the case of Lalita Kumari

(supra), the High Court has observed that a preliminary enquiry in order

to verify the correctness of the allegations and also to elicit some

information/material which may be relevant for deciding the question

regarding commission or non-commission of cognizable offence would

be permissible. Thereafter, the High Court has further observed that as

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the notice has been issued only for facilitating the purpose of preliminary

enquiry, it cannot be said to be bad in law. The High Court has further

observed 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. However, the High Court has further

observed that not responding to such a 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 co-

operating with the preliminary enquiry. For the aforesaid, the High Court

took into consideration Condition No. 16 of the State Anti-Corruption

Bureau Manual. By observing the above, the High Court, by the

impugned judgment and order has dismissed the said writ petition, which

has given rise to the present appeal.

4. Shri Subodh Dharmadhikari, learned Senior Advocate appearing

on behalf of the appellant has vehemently submitted that notice dated

04.03.2020 issued by the Anti-Corruption Bureau by which the appellant

has been directed to appear before the investigating officer, Anti-

Corruption Bureau, Nagpur and to make a statement in respect of the

property owned by him and to give information on the points stated in the

said notice has no statutory force.

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4.1 It is submitted that the said notice has been issued in purported

exercise of power under Section 160 Cr.P.C. However, as the appellant

cannot be said to be a witness in the case, Section 160 Cr.P.C. shall not

be applicable at all. It is submitted that therefore notice dated 4.3.2020

is beyond the scope and ambit of Section 160 Cr.P.C.

4.2 It is further submitted that while dismissing the writ petition, the

High Court has materially erred in relying upon the decision of this Court

in the case of Lalita Kumari (supra).

4.3 It is further submitted that the High Court ought to have

appreciated that such a notice calling upon the appellant to give the

statement and more particularly on the points mentioned in the said

notice shall be hit by Article 20(3) and 21 of the Constitution of India. It

is further submitted that as such notice dated 4.3.2020 is for roving and

fishing enquiry which is not permissible under the law and as such it has

no statutory backing.

4.4 It is further submitted that the High Court has failed to appreciate

that notice dated 4.3.2020 is a clear example of political vendetta and

actuated by malice to harass the political opponent by the ruling party.

4.5 It is further submitted by the learned counsel appearing on behalf

of the appellant that as such the reliance placed upon Condition No. 16

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of the State Anti-Corruption Bureau Manual has no statutory force even

as observed and held by this Court in the case of Lalita Kumari (supra).

4.6 Making the above submissions, it is prayed to allow the present

appeal and quash and set aside the impugned judgment and order

passed by the High Court, as well as, impugned notice dated 4.3.2020

issued by the Anti-Corruption Bureau, Nagpur.

5. While opposing the present appeal, Shri Raja Thakare, learned

Senior Advocate has vehemently submitted that the notice issued by the

Police Inspector, Anti-Corruption Bureau, Nagpur is absolutely in

consonance with the ACB Manual which permits the discrete enquiries

and open enquiries, so as to find out the veracity of the allegations in the

complaint. It is submitted that even the same is also permissible as per

the decision of this Court in the case of Lalita Kumari (supra).

5.1 It is submitted that a complaint was received in the office of the

Director General, Anti-Corruption Bureau, Maharashtra State, Mumbai,

wherein various allegations have been made against the appellant with

regard to accumulating the assets disproportionate to his known sources

of income. That on the basis of the said complaint, the Superintendent

of Police, Anti-Corruption Bureau, Nagpur initiated a discrete enquiry

against the appellant with regard to the allegations in the complaint

through the officers working under him. Accordingly, a discrete enquiry

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was conducted and on 27.02.2020, a report was submitted to the

Superintendent of Police, Anti-Corruption Bureau, Nagpur. It is

submitted that after scrutiny of the said report, the Superintendent of

Police, Anti-Corruption Bureau, Nagpur forwarded the same to the

Director General of Police, Anti-Corruption Bureau, Maharashtra,

Mumbai. That the Director General of Police, Anti-Corruption Bureau,

Maharashtra vide his letter dated 28.02.2020 directed the

Superintendent of Police, Anti-Corruption Bureau, Nagpur who in turn

directed the Police Inspector, Anti-Corruption Bureau, Nagpur to conduct

an ‘open enquiry’.

5.2 It is submitted that the said ‘open enquiry’ is to find out if an

offence under Section 13(e) of the Prevention of Corruption Act is

disclosed. It is submitted that Section 13(e) of the PC Act makes it

apparent that the person against whom a complaint is received has to

satisfy the investigating agency whether his assets are in consonance

with his known sources of income and accountable. The information

regarding assets may be provided by the source informant or can be

detected during the discrete enquiry, however, the sources of his income

would be within exclusive knowledge of the person against whom the

complaint or information is received. It is submitted that therefore the

‘open enquiry’ is warranted before the registration of an offence. It is

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submitted that accordingly the Superintendent of Police, Anti-Corruption

Bureau, Nagpur directed the Police Inspector, Anti-Corruption Bureau,

Nagpur to conduct an ‘open enquiry’ with regard to the allegations

levelled in the complaint.

5.3 It is submitted that the notice has been issued as per the principals

of natural justice to facilitate the appellant to clarify regarding his assets

and known sources of income, which would enable the investigating

officer to ascertain whether cognizable offence is disclosed or not. It is

submitted that however Section 160 Cr.P.C. has been inadvertently

mentioned in the said notice.

5.4 It is further submitted that, as such, despite number of notices

issued, the appellant is not co-operating with the investigating agency

and is not appearing for giving his statement on the points mentioned in

the notice, on one pretext or the other. It is submitted that, as such, the

appellant did join the ‘open enquiry’ and ask for time to collect details

and produce the same. It is submitted that even on 7.1.2021, the

appellant attended the office of the Anti-Corruption Bureau, Nagpur with

relevant documents of some of the properties owned by him and his

partial statement was recorded and his statement remained incomplete.

But the appellant avoided to give details of his assets, liabilities and

prominent expenditures and therefore no conclusion could be drawn. It

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is submitted therefore that once the appellant having presented himself

before the investigating authority on 7.1.2021 and his partial statement

having been recorded, the issue whether the said notice can compel the

appellant to appear in person before the officers of the Anti-Corruption

Bureau, Nagpur no longer survives for consideration by this Court.

5.5 It is submitted that, in fact, the appellant has been summoned for a

preliminary enquiry only to ascertain whether cognizable offence is

disclosed or not. If the preliminary enquiry discloses the cognizable

offence, then a first information report will be registered against the

appellant. However, that stage has not been reached as the appellant

has only partially recorded his statement before the investigating officer

and the preliminary enquiry has remained un-concluded.

5.6 It is submitted that in the discrete enquiry, the investigating

authority has found, prima facie, substance in the allegations with regard

to the complaint received and therefore it was decided to conduct an

‘open enquiry’. It is submitted that the decision with regard to discrete

enquiry as well as an open enquiry with regard to allegations against the

appellant was taken as per the provisions of the Manual of the Anti-

Corruption Bureau, Maharashtra. Heavy reliance is placed on Chapter

IV of the Anti-Corruption Manual Rules, which provides for conducting

the investigation including discrete enquiry and ‘open enquiry’.

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5.7 It is further submitted that the enquiry is being conducted to verify

the truthfulness of the allegations with regard to the accumulation of

assets disproportionate to the known sources of income of the appellant.

Unless the relevant property details of the appellant are made available

to the authorities, the investigating authority will not be able to ascertain

as to whether the assets of the appellants are disproportionate to his

known sources of income or not. The very nature of the enquiry in

respect of offence under Section 13(e) of the PC Act presupposes that it

is the person against whom the allegations are made has to explain the

details of his property qua his known sources of income. It is submitted

that therefore the enquiry initiated should reach to its logical conclusion.

It is submitted that at the time of culmination of the inquiry, a decision will

be taken on merits and on the basis of the evidence/material collected

during the course of ‘open enquiry’, it will be considered whether a

cognizable offence is made out or not. It is submitted that if no

substance is found during the ‘open enquiry’, the Anti-Corruption Bureau,

Nagpur may close the enquiry without any further action.

5.8 It is further submitted that calling upon the appellant to disclose his

properties, assets etc. cannot be said to be in violation of Articles 20(3)

and 21 of the Constitution of India, as alleged. It is submitted to invoke

the constitutional right under Article 20(3), an accusation against him

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must exist. It is submitted that as on date no FIR has been registered

against the appellant and the investigating authorities are only

conducting the preliminary enquiry. It is submitted that it cannot be said

that the said notice seeks to make a roving inquiry with regard to the

assets and personal details of the appellant or that it is vague.

5.9 Making the above submissions, it is prayed to dismiss the present

appeal.

6. We have heard the learned counsel for the respective parties at

length.

At the outset, it is required to be noted that what was challenged

before the High Court was notice issued by the Police Inspector, Anti-

Corruption Bureau, Nagpur, by which the appellant has been called upon

to give his statement in respect of the properties owned by him, for the

purpose of enquiring the complaint against him, alleging accumulating

the assets disproportionate to his known sources of income which, as

such, was/is at pre-FIR stage. By the aforesaid notice dated 4.3.2020,

the appellant has been called upon to carry along with the information on

the following aspects for the purpose of recording his statement:

1) Record in respect of ancestral and self-acquired property in your

name, for example, Registered Deed, Construction Licence,

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Receipts relating to tax, Sale Deed of Agricultural Land, 7/12

Extract and Mutation Entries, etc.

2) Details of ancestral and self-acquired gold coins and jewellery,

likewise sale and purchase of vehicle.

3) Passbooks, Certificates, L.I.C., Shares/Debentures Certificates,

etc. in respect of investments at bank, insurance and others in

your name and in the name of your family members.

4) Details of documentary evidence in respect of loan borrowed by

you.

5) Proofs and income tax return in respect of your income other

than your remuneration.

6) Details of expenditure incurred by you in respect of pilgrimages,

functions, hospitals, foreign tours, etc.

7) Information regarding remuneration and allowances received by

you.

The High Court, by the impugned judgment and order, has refused

to quash the said notice mainly relying upon the decision of this Court in

the case of Lalita Kumari (supra).

7. Therefore, the short question which is posed for the consideration

of this Court is, whether such an enquiry at pre-FIR stage would be legal

and to what extent such an enquiry is permissible?

7.1 While answering the aforesaid two questions and permissibility of

the enquiry at pre-FIR stage, it is required to be noted that on the basis

of the complaint against him, the appellant is facing various allegations

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with regard to accumulating the assets disproportionate to his known

sources of income, when the appellant was a member and the President

of the Municipal Council, Katol, District Nagpur – a public servant. At

that stage and while considering the veracity of the allegation of

accumulating the assets disproportionate to his known sources of

income, the investigating agency has thought it fit to hold an ‘open

enquiry’ and during the course of such ‘open enquiry’ the appellant has

been called upon to make his statement along with the information on

the points, referred to hereinabove. Whether, such an enquiry, which

can be said to be a preliminary enquiry, is permissible under the

Maharashtra State Anti-Corruption Manual shall be dealt with and

considered hereinbelow.

8. However, whether in a case of a complaint against a public servant

regarding accumulating the assets disproportionate to his known

sources of income, which can be said to be an offence under Section

13(1)(e) of the Prevention of Corruption Act, 1988, an enquiry at pre-FIR

stage is permissible or not and/or it is desirable or not, if any decision is

required, the same is governed by the decision of this Court in the case

of Lalita Kumari (supra).

8.1 While considering the larger question, whether police is duty

bound to register an FIR and/or it is mandatory for registration of FIR on

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receipt of information disclosing a cognizable offence and whether it is

mandatory or the police officer has option, discretion or latitude of

conducting preliminary enquiry before registering FIR, this Court in the

case of Lalita Kumari (supra) has observed that it is mandatory to

register an FIR on receipt of information disclosing a cognizable offence

and it is the general rule. However, while holding so, this Court has also

considered the situations/cases in which preliminary enquiry is

permissible/desirable. While holding that the registration of FIR is

mandatory under Section 154, if the information discloses commission of

a cognizable offence and no preliminary enquiry is permissible in such a

situation and the same is the general rule and must be strictly complied

with, this Court has carved out certain situations/cases in which the

preliminary enquiry is held to be permissible/desirable before

registering/lodging of an FIR. It is further observed that if the information

received does not disclose a cognizable offence but indicates the

necessity for an inquiry, a preliminary enquiry may be conducted to

ascertain whether cognizable offence is disclosed or not. It is observed

that as to what type and in which cases the preliminary enquiry is to be

conducted will depend upon the facts and circumstances of each case.

As per the decision of this Court, the categories of cases in which

preliminary enquiry may be made are as under:

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(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal
prosecution, for example, over 3 months’ delay in reporting the matter
without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions
which may warrant preliminary inquiry.

In paragraph 120, this Court concluded and issued directions as

under:

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

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 informant forthwith and not later than one week. It must disclose
reasons in brief for closing the complaint and not proceeding further.
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.

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

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal
prosecution, for example, over 3 months’ delay in reporting the matter
without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions
which may warrant preliminary inquiry.

120.7. While ensuring and protecting the rights of the accused and the
complainant, a preliminary inquiry should be made time-bound and in any
case it should not exceed 7 days. The fact of such delay and the causes of
it must be reflected in the General Diary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is the record of all
information received in a police station, we direct that all information
relating to cognizable offences, whether resulting in registration of FIR or
leading to an inquiry, must be mandatorily and meticulously reflected in the
said diary and the decision to conduct a preliminary inquiry must also be
reflected, as mentioned above.”

9. In the context of offences relating to corruption, in paragraph 117

in the case of Lalita Kumari (supra), this Court also took note of the

decision of this Court in the case of P. Sirajuddin v. State of Madras

(1970) 1 SCC 595 in which case this Court expressed the need for a

preliminary enquiry before proceeding against public servants.

While expressing the need for a preliminary enquiry before

proceeding against public servants who are charged with the allegation

16
of corruption, it is observed in the case of P. Sirajuddin (supra) that

“before a public servant, whatever be his status, is publicly charged with

acts of dishonesty which amount to serious misdemeanour or

misconduct of indulging into corrupt practice and a first information is

lodged against him, there must be some suitable preliminary enquiry into

the allegations by a responsible officer. The lodging of such a report

against a person who is occupying the top position in a department,

even if baseless, would do incalculable harm not only to the officer in

particular but to the department he belonged to in general. If the

Government had set up a Vigilance and Anti-Corruption Department as

was done in the State of Madras and the said department was entrusted

with enquiries of this kind, no exception can be taken to an enquiry by

officers of this department”. It is further observed that “when such an

enquiry is to be held for the purpose of finding out whether criminal

proceedings are to be initiated and the scope thereof must be limited to

the examination of persons who have knowledge of the affairs of the

person against whom the allegations are made and documents bearing

on the same to find out whether there is a prima facie evidence of guilt of

the officer, thereafter, the ordinary law of the land must take its course

and further enquiry be proceeded with in terms of the Code of Criminal

Procedure by lodging a first information report”.

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9.1 Thus, an enquiry at pre-FIR stage is held to be permissible and not

only permissible but desirable, more particularly in cases where the

allegations are of misconduct of corrupt practice acquiring the

assets/properties disproportionate to his known sources of income. After

the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry,

if, on the basis of the material collected during such enquiry, it is found

that the complaint is vexatious and/or there is no substance at all in the

complaint, the FIR shall not be lodged. However, if the material

discloses prima facie a commission of the offence alleged, the FIR will

be lodged and the criminal proceedings will be put in motion and the

further investigation will be carried out in terms of the Code of Criminal

Procedure. Therefore, such a preliminary enquiry would be permissible

only to ascertain whether cognizable offence is disclosed or not and only

thereafter FIR would be registered. Therefore, such a preliminary

enquiry would be in the interest of the alleged accused also against

whom the complaint is made.

9.2 Even as held by this Court in the case of Superintendent of Police,

CBI v. Tapan Kumar Singh (2003) 6 SCC 175, a GD entry recording the

information by the informant disclosing the commission of a cognizable

offence can be treated as FIR in a given case and the police has the

power and jurisdiction to investigate the same. However, in an

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appropriate case, such as allegations of misconduct of corrupt practice

by a public servant, before lodging the first information report and further

conducting the investigation, if the preliminary enquiry is conducted to

ascertain whether a cognizable offence is disclosed or not, no fault can

be found. Even at the stage of registering the FIR, what is required to be

considered is whether the information given discloses the commission of

a cognizable offence and the information so lodged must provide a basis

for the police officer to suspect the commission of a cognizable offence.

At this stage, it is enough if the police officer on the basis of the

information given suspects the commission of a cognizable offence, and

not that he must be convinced or satisfied that a cognizable offence has

been committed. Despite the proposition of law laid down by this Court

in catena of decisions that at the stage of lodging the first information

report, the police officer need not be satisfied or convinced that a

cognizable offence has been committed, considering the observations

made by this Court in the case of P. Sirajuddin (supra) and considering

the observations by this Court in the case of Lalita Kumari (supra) before

lodging the FIR, an enquiry is held and/or conducted after following the

procedure as per Maharashtra State Anti-corruption & Prohibition

Intelligence Bureau Manual, it cannot be said that the same is illegal

and/or the police officer, Anti-corruption Bureau has no jurisdiction and/or

19
authority and/or power at all to conduct such an enquiry at pre-

registration of FIR stage.

10. In the present case, the office of the Director General, ACB,

Maharashtra State, Mumbai had received a complaint against the

appellant and his three brothers, wherein various allegations have been

made against the appellant with regard to accumulating the assets

disproportionate to his known sources of income. At that time, the

appellant was a Member and President of the Municipal Council, Katol,

District Nagpur. On the basis of the said complaint, the Superintendent

of Police, Anti-corruption Bureau, Nagpur initiated a discrete enquiry

against the appellant with regard to the allegations in the complaint

through the officers working under him. After conducting a discrete

enquiry, report dated 27.2.2020 has been submitted to the

Superintendent of Police, ACB, Nagpur. After scrutiny of the said report,

the same has been forwarded to the Director General of Police, ACB.

After considering the report, the Director General of Police, ACB had

directed the Superintendent of Police who in turn had directed the Police

Inspector, ACB, Nagpur to conduct an ‘open enquiry’ and during the

course of conducting an ‘open enquiry’, the appellant against whom the

allegations are made of accumulating the assets disproportionate to his

known sources of income, which can be said to be an offence under

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Section 13(1)(e) of the PC Act, has been served with the impugned

notice, impugned before the High Court. A detailed procedure is

provided under the Maharashtra State Anti-corruption & Prohibition

Intelligence Bureau Manual of Instructions 1968, while conducting open

enquiries. Discrete enquiry is permissible as per para 14 of the said

Manual and the ‘open enquiry’ is permissible as per para 15 of the said

Manual. While conducting open enquiries, the enquiry officer who is

conducting the ‘open enquiry’ is required to follow the following

instructions:

(a) As soon as an application or information is received by him for making an
open enquiry, it should be entered in the Enquiry Register and further
developments recorded in it from time to time. (For proforma of the
Register see Appendix XX). The number of the file allotted to the enquiry
should be cited in all references.

(b) The contents of the application or information should be scrutinized
carefully and various allegations contained therein be noted seriatum.

(c) A plan of action should be prepared, indicating therein –

The Director’s file number and the date of receipt,
Serial number of the allegation,
Allegations in brief,
Name of witnesses to be examined or likely to be examined,
Papers or documents to be collected and
Probable date of completion of the enquiry.

(d) The plan of action prepared by the Enquiry Officer as above, should be
submitted within seven days of the receipt of the enquiry to the Director.

(e) The statement of the applicant should be recorded nothing therein all the
circumstances within his knowledge with regard to the allegations.

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

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

(h) The statement of the person against whom the allegations have been
made should be recorded, giving him an opportunity to explain each
allegation against him. The application should not be shown to him in
any circumstances. The name of the applicant should not be disclosed,
if the applicant so expressly desires.

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

(j) After recording the evidence of both the sides and collecting the
necessary documents, the entire record should be examined to formulate
a definite opinion on each of the allegations.

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

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

10.1 After completing the enquiry, a final report along with the papers of

the enquiry is required to be sent to the Director General, ACB. Even,

while submitting the final report and the papers of the enquiry, which are

the points to be considered and/or borne in mind are stated in para 16 of

the Manual. Only thereafter and if it is found that a cognizable offence is

made out and there is substance in the allegations, an FIR would be

lodged and further investigation will be carried out after following the

procedure as per the Code of Criminal Procedure. Therefore, a fool

proof safeguard and procedure is provided before lodging an

FIR/complaint before the Court against the public servant, who is facing

22
the allegations of corrupt practice. However, as observed hereinabove,

such an enquiry would be conducted to ascertain whether a cognizable

offence is disclosed or not. As observed hereinabove, even at the stage

of registering the first information report, the police officer is not required

to be satisfied or convinced that a cognizable offence has been

committed. It is enough if the information discloses the commission of a

cognizable offence as the information only sets in motion the

investigative machinery, with a view to collect all necessary evidence,

and thereafter to take action in accordance with law. Therefore, as such,

holding such an enquiry, may be discrete/open enquiry, at pre-

registration of FIR stage in the case of allegation of corrupt practice of

accumulating assets disproportionate to his known sources of income,

cannot be said to be per se illegal.

11. However, the next question posed for the consideration of this

Court is, whether to what extent such an enquiry is permissible and what

would be the scope and ambit of such an enquiry. By the impugned

notice, impugned before the High Court, and during the course of the

‘open enquiry’, the appellant has been called upon to give his statement

and he has been called upon to carry along with the information on the

points, which are referred to hereinabove for the purpose of recording

his statement. The information sought on the aforesaid points is having

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a direct connection with the allegations made against the appellant,

namely, accumulating assets disproportionate to his known sources of

income. However, such a notice, while conducting the ‘open enquiry’,

shall be restricted to facilitate the appellant to clarify regarding his assets

and known sources of income. The same cannot be said to be a fishing

or roving enquiry. Such a statement cannot be said to be a statement

under Section 160 and/or the statement to be recorded during the

course of investigation as per the Code of Criminal Procedure. Such a

statement even cannot be used against the appellant during the course

of trial. Statement of the appellant and the information so received

during the course of discrete enquiry shall be only for the purpose to

satisfy and find out whether an offence under Section 13(1)(e) of the PC

Act, 1988 is disclosed. Such a statement cannot be said to be

confessional in character, and as and when and/or if such a statement is

considered to be confessional, in that case only, it can be said to be a

statement which is self-incriminatory, which can be said to be

impermissible in law.

12. At this stage, it is required to be noted that in the present case as

such the appellant has produced the relevant documents of some of the

properties owned by him and the appellant has joined the ‘open enquiry’.

It also appears from the counter filed on behalf of the Anti-corruption

24
Bureau that on the basis of the information given by the appellant, letters

have been issued to various authorities/banks, seeking further and better

particulars. Partial statement of the appellant has already been

recorded. However, as observed hereinabove, such a statement/enquiry

would be restricted only to ascertain whether a cognizable offence is

disclosed or not. Such a statement cannot be said to be a confessional

statement. After having been satisfied and after conclusion of the

enquiry and on the basis of the material collected, if it is found that there

is substance in the allegations against the appellant and it discloses a

cognizable offence, FIR will be lodged and the investigating agency has

to collect the evidence/further evidence to substantiate the

allegations/charge of accumulating the assets disproportionate to his

known sources of income. However, if during the enquiry at pre-

registration of FIR stage, if the appellant satisfies on production of the

materials produced relating to his known sources of income and the

assets, in that case, no FIR will be lodged and if he is not able to clarify

his assets, vis-à-vis, known sources of income, then the FIR will be

lodged and he will be subjected to trial. Therefore, as such, such an

enquiry would be to safeguard his interest also which may avoid further

harassment to him.

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13. In view of the above and for the reasons stated above, 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 accumulation of assets

disproportionate to his known sources of income and the same shall not

be treated as a confessional statement.

14.   Appeal      is   accordingly     dismissed     with     the    above

clarifications/observations.



                                     …..…………………………………J.
                                     [Dr. Dhananjaya Y. Chandrachud]



New Delhi;                           ………………………………………J.
March 24, 2021.                      [M.R. Shah]




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