TMI Blog2018 (3) TMI 1936X X X X Extracts X X X X X X X X Extracts X X X X ..... lways under law - If the facts and circumstances of the case leading to prosecution of the petitioner for various offences under the P.C. Act are meticulously scrutinized, then it would ipso facto reveal that the concern of the ACB was to unearth alleged large scale corruption in Mines Department upon receipt of information by an Inspector of the Department in this behalf. When an information discloses commission of cognizable offence, registration of FIR is mandatory and it is only in exceptional cases for limited purpose preliminary inquiry can be conducted by the police/investigating agency - Undeniably, the information received by the Inspector of ACB in the matter purportedly unearthed large scale corruption in Mines Department showing involvement of many officials of department and a senior officer of administration, per se delay 2-3 days cannot be categorized as abnormal. Viewed from any angle, the material available on record, if objectively scrutinized at this juncture, when after completion of investigation charge-sheet in the matter has been filed, while taking note of the submissions made on behalf of petitioner, I am unable to subscribe the view that inherent pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Principal Secretary, petitioner has averred in the petition that within a span of one year he inked many MOUs for mineral prospecting and explorations, which paved the way for huge investment in mining and petroleum sectors in Rajasthan. 3. Concentrating on the principal grievances, petitioner has pleaded that abrupt coercive actions taken on 16.09.2015 by the ACB sleuths, when he was returning from Secretariat after attending meeting, and then taking into custody gave him rude shock. As per petitioner s version, simultaneous actions were undertaken by the ACB officials by seizure of computers, files etc. without any search warrant or authorization. In follow of actions, petitioner was taken to his official residence, already under control of ACB Personnel, and then extensive search operation was carried out to every nook corner of the residence. The search operation lasted till morning of the next day. Petition also unfurls that finally the petitioner was taken to ACB Headquarters without furnishing him grounds of arrest and sans recording reasons in clear negation of the directions of Supreme Court in case of Arnesh Kumar Vs. State of Bihar [(2014) 8 SCC 273]. 4. Ventilat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the agency had information on 15.09.2015 of a big deal to happen on 16.09.2015, is also pleaded by the petitioner. Follow of action in this behalf, including typing of secret information at 09:15 PM and forwarding the same to I.G.(First) ACB, Rajasthan, Jaipur, also finds mention in the petition. 7. Petitioner, in order to challenge impugned actions of the State, has once again reiterated that without registration of FIR against him, I.O. was deputed to lay a trap at Udaipur. The ACB sleuths accompanying the trap team then pounced the office of a C.A. at Udaipur on 16.09.2015 and found three persons, viz., Sh. Sanjay Sethi, Sh. Shyam Singh Singhvi (C.A.) and Sh. Dhirendra Singh in possession of ₹ 2.55 crores in cash. Sh. Sanjay Sethi and Sh. Shyam Singh Singhvi were apprehended on the spot and third person Dhirendra Singh was also taken into custody on the same day. Petitioner, while narrating all these facts, has made an attempt to show that all these persons explained the source of available cash. While vehemently canvassing grounds to assail impugned FIR, petitioner has further challenged charge-sheet Annex.5, filed in the matter, by categorizing it mala fide, illegal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther persons; namely, Sanjay Sethi and Dhirendra Singh @ Chintu, were present with a bag containing ₹ 2.5 Crores. When asked, Mr. Sanjay Sethi disclosed that money is brought by Sher Khan for purchase of two mines but no document was shown by him to prove sale transaction. Likewise, Dhirendra Singh revealed a different version regarding the available cash amount without furnishing any proof. Respondent-State, in the return, has also pleaded that Shyam Singh Singhvi admitted his professional relationship with Sher Khan and Rashid Khan for more than two and half decades. 11. A significant fact, that Rashid Khan handed over two bags to Shyam Singh Singhvi, allegedly containing ₹ 5 Lacs, for giving them to Sanjay Sethi, and his ignorance about total amount lying in these bags, also finds mention in the reply. State has specifically averred in the reply that Sanjay Sethi and Shyam Singh Singhvi were engaged in corrupt practices with Sher Khan for their personal gains while hand in gloves with the petitioner, Pankaj Gehlot, Addl. Director(Mines) and Pukhraj Ameta, Superintending Mining Engineer. Admission of Sh. Sanjay Sethi during interrogation that an amount of ₹ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end that particulars about secret information are absolutely vague, cryptic unspecific inasmuch as neither date of information nor identity of alleged secret informer is disclosed, sufficiently casts a shadow of doubt on the complaint of Inspector Vikram Singh. 15. Learned counsel would contend that case in hand is a glaring example of blatant misuse of power and dogmatic actions of ACB inasmuch as petitioner was arrested and his official residence is also searched without registration of FIR. Learned counsel argues that starting investigation in the matter 2-3 days before registration of FIR has vitiated entire proceedings. Laying emphasis on mandate of Section 154 Cr.P.C., learned counsel has urged that sans registration of FIR, remand of the petitioner and filing charge-sheet in the matter, on the basis of investigation carried out anterior to it, is a highhanded action of ACB in clear negation of law. Learned counsel submits that search and seizure proceedings were undertaken by ACB in flagrant violation of Section 165 Cr.P.C. Emphasizing registration of FIR at the earliest, learned counsel contends that object of legislation in this behalf is to set criminal law into moti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided on 3rd September 2012 by Bangalore Bench of Karnataka High Court) and other decisions of Karnataka High Court and order of Supreme Court passed on 24.09.2014 in Special Leave to Appeal (Cri) No.3508/2013 and other Special Leave to Appeals dismissing the leave petitions filed by State of Karnataka including the one filed against the order of Karnataka High Court dated 3rd of September 2012 in Criminal Petition No.2142/2012, which was decided alongwith Criminal Petition No.3213/12. 18. Per contra, learned Addl. Advocate General Mr. S.K. Vyas would urge that arguments advanced by the learned counsel for the petitioner are per se alluring but lacking legal foothold. Mr. Vyas contends that after investigation, prima facie, evidence is collected by investigating agency against the petitioner to prosecute him for various offences under the Prevention of Corruption Act, and therefore, at this stage, it would not be appropriate to exercise inherent jurisdiction to shuttle the trial. Learned Addl. Advocate General submits that in cases of corruption, involving public servants, inherent powers are to be exercised very sparingly with great care and circumspection for quashment of cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. The case in hand involves a senior bureaucrat of the State and therefore the learned counsel espousing his cause has endeavoured to articulate his submissions with full gusto and rhetorics. Likewise, State too has locked the horns with full vehemence to defend its impugned actions. However, concern of the Court is to examine legality and propriety of the impugned proceedings on the touchstone of inherent powers of this Court uninfluenced by the status of an individual. In our democratic polity, where rule of law prevails, no individual, howsoever highly placed he may be, can claim immunity much less absolute immunity from the law and every individual citizen is always under law. If the facts and circumstances of the case leading to prosecution of the petitioner for various offences under the P.C. Act are meticulously scrutinized, then it would ipso facto reveal that the concern of the ACB was to unearth alleged large scale corruption in Mines Department upon receipt of information by an Inspector of the Department in this behalf. 23. Well it is true that information received by the concerned Inspector did not culminate into registration of FIR with promptitude and preliminar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or be at variance with the intent of the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations. 52. It is relevant to mention that the object of using the word shall in the context of Section 154(1) of the Code is to ensure that all information relating to all cognizable offences is promptly registered by the police and investigated in accordance with the provisions of law. 53. Investigation of offences and prosecution of offenders are the duties of the State. For cognizable offences , a duty has been cast upon the police to register FIR and to conduct investigation except as otherwise permitted specifically under Section 157 of the Code. If a discretion, option or latitude is allowed to the police in the matter of registration of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the earliest information as FIR is inter alia twofold: one, that the criminal process is set into motion and is well documented from the very start; and second, that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment, etc. later. 94. Principles of democracy and liberty demand a regular and efficient check on police powers. One way of keeping check on authorities with such powers is by documenting every action of theirs. Accordingly, under the Code, actions of the police, etc. are provided to be written and documented. For example, in case of arrest under Section 41(1)(b) of the Code, the arrest memo along with the grounds has to be in writing mandatorily; under Section 55 of the Code, if an officer is deputed to make an arrest, then the superior officer has to write down and record the offence, etc. for which the person is to be arrested; under Section 91 of the Code, a written order has to be passed by the officer concerned to seek documents; under Section 160 of the Code, a written notice has to be issued to the witness so that he can be called for recording of his/her statement, seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f time to permit preliminary inquiry in such matters in relation to such offences. While dilating on the scope of preliminary inquiry, the Court finally concluded: 119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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. 25. Thus, when an information discloses commission of cognizable offence, registration of FIR is mandatory and it is only in exceptional cases for limited purpose preliminary inquiry can be conducted by the police/investigating agency. As per ratio of Lalita Kumari s case (supra), preliminary inquiry in corruption cases is permitted by the Court precisely for ascertaining whether the information reveals any cognizable offence. For assailing the impugned actions of the State, petitioner has essentially buttressed arguments on delay and laches in registration of FIR. True it is that from the record it is borne out that FIR was registered after 2 or 3 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaking such procedure in their cases no prejudice was caused to them. Had they not accepted the illegal gratification as alleged, no offence would have been registered against them. So, the procedure that is followed prior to registration of the case in these corruption cases, is part of preliminary inquiry, as mentioned above. The second question that arose in these cases is, whether circumstances and evidence collected against the applicants prior to registration of crime is admissible as evidence. The answer has to be in affirmative, mainly because the events from demand of illegal gratification, agreeing to receive such grantification and accepting such gratification in presence of independent punch witnesses would form a chain of events that would ultimately constitute offence under section 7 of the Prevention of Corruption Act, 1988. The main ingredients for constituting offence under section 7 of the Act are as under: i) The accused must be a public servant; ii) He must agree to accept for himself or for any other person; iii) Gratification other than legal remuneration; iv) As a motive or reward; v) For doing or forbearing to do any official act; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es out that prima facie evidence for constituting offences under the P.C. Act is available. In the wake of such material available against the petitioner, clogging the trial perpetually appears to be unjust even if the Court concurs with the submission of the learned counsel seriously insinuating some of the actions of ACB to question legitimacy of those actions. Moreover, of late, taking a decision to vitiate the investigation, rendering charge-sheet and subsequent proceedings vulnerable in a corruption case, is per se not fathomable. As regards nonadherence of guidelines provided in ACB Manual, suffice it to observe that essentially those guidelines are in consonance and in conformity with Lalita Kumari s case (supra), and therefore, no detailed discussion on this issue is required. The grounds sought to be canvassed by the learned counsel at such a belated stage, by no stretch of imagination satisfy the requirements envisaged under Section 482 Cr.P.C. to nullify entire proceedings. 29. While reiterating that alleged grievances of the petitioner about his detention and search and seizure carried out at his official residence before registration of FIR cannot be given undue cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under Section 482 Cr.P.C. to quash FIR and criminal proceedings. The Court held: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. 2. Where the allegations in the first information report and other materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. In the light of the above decisions of this Court, we feel that the said observations made in the impugned judgment are unwarranted and the historical anecdote is out of context and inappropriate. We are afraid if such a view is to be judicially accepted and approved, then it will be tantamount to laying down an alarming proposition that an incoming Government under all circumstances, should put its seal of approval to all the commissions and omissions of the outgoing Government ignoring even glaring lapses and serious misdeeds and the deleterious and destructive consequences that may follow therefrom. Hence we are constrained to express our disapproval since the text, tenor and tone of the above observations leave us with the feeling that such misplaced sympathy indicated therein appears to have considerably weighed with the learned Judges in taking the extreme step in quashing the first information report. We do not like to make any more comment except saying that as we have pointed out in our exordial note, in our democratic polity where the 'R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be established by evidence nor should the court judge the probability, reliability or genuineness of the allegations made therein. More so, the charge-sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 CrPC. So, the order passed even by the High Court or this Court is subject to the order which would be passed by the trial Court at a later stage. 34. In yet another later decision, in case of N. Soundaram Vs. P.K. Pounraj Anr. [(2014) 10 SCC 616], Supreme Court, while reiterating the principles laid down in Bhajan Lal (supra) on scope of exercise of powers under Section 482 Cr.P.C., held: It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any Court and to secure the ends of justice [See State of Haryana v. Bhajanlal]. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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