TMI Blog2019 (12) TMI 1632X X X X Extracts X X X X X X X X Extracts X X X X ..... eading of the entirety of an FIR, no offence is disclosed. The preliminary inquiry warranted in LALITA KUMARI VERSUS GOVT. OF UP. ORS. [ 2013 (11) TMI 1520 - SUPREME COURT] is not required to be mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient. There are no merit in the reasonings recorded by the High Court in respect of contentions raised by the Accused Officer. The arguments raised by the Accused Officer cannot be accepted in quashing the proceedings under the Act - appeal allowed. - CRIMINAL APPEAL NO. 1662 OF 2019 (SLP (CRIMINAL) NO. 3632 OF 2019), CRIMINAL APPEAL NO. 1663 OF 2019, (SLP (CRIMINAL) NO. 4074 OF 2019) - - - Dated:- 6-12-2019 - L. NAGESWARA RAO, HEMANT GUPTA JJ. For the Appellant : Mr. S. Udaya Kumar Sagar, AOR, Ms. Bina Madhavan, Adv., Ms. Swati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the likely savings of Rs.37,00,000/- the Accused Officer has acquired assets approximately worth Rs.3,55,61,500/-. Thus, the A.O. is in possession of assets worth Rs.3,18,61,500/- which are disproportionate to the known sources of his income for which he cannot satisfactorily account for and thereby committed the offence punishable U/s 13(2) r/w 13(1)(e) of P.C. Act 1988. Permission has been obtained from the competent authority to register a case against the above official U/s 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988. Hence, the FIR. 4. A charge sheet was filed on 9th October, 2017 on completion of the investigations. As per the Report, the Accused Officer was said to be in possession of assets worth Rs.3,18,61,500/- alleged to be disproportionate to his known sources of income. The total worth of the property against his savings of Rs.37 lakhs was found to be approximately Rs.3,55,61,500/-. During the investigations, as many as 114 witnesses were examined. Ch. Sudhakar, DSP, CIU, ACB, Hyderabad and five more investigating officers conducted the investigations and prepared the final report. 5. The High Court in a petition for quashing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther 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. 7. Learned counsel for the State referred to Government Order No. 3168 dated 24th May, 2008 re-employing Sri K. Sampath Kumar, Joint Director, Anti-Corruption Bureau as Officer on Special Duty after his superannuation on 31st May, 2008 for a period of one year. Such order of re-employment was renewed on 5th March, 2009; 13th May, 2010 and on 30th May, 2011, each extending the term of reemployment by one year. It was on 9th November, 2011, the Joint Director, CIU SES, Anti-Corruption Bureau authorized Ch. Sudhakar, DSP to register a case against the Accused Officer under Section 13(2) read with Section 13(1)(e) of the Act and inspect any premises, bankers books of the Accused Officer or of any other person concerned with the affairs of the Accused Officer and take or cause to be taken certified copies of the relevant entries therefrom for the purpose of investigation. It is in pursuance of such authorization that the FIR was lodged, premises were searched and the Accused Officer was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in age for government servants. He claimed relaxation in age being a government servant for appointment on regular basis. It was held that it was a contract which governed his terms of service and not the rules framed under the proviso to Article 309 of the Constitution of India in as much as he was not appointed in accordance with the Rules and, thus, was not eligible for any relaxation in upper age for appointment on a regular basis in a post advertised by Union Public Service Commission. 10. Article 310 of the Constitution contemplates that except as expressly provided, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union, holds office at the pleasure of the President. In respect of the State Services, however, he or she holds office at the pleasure of the Governor. In the present case, Sri K. Sampath Kumar was reemployed for a period of one year by the State Government in exercise of powers conferred under Article 162 of the Constitution of India. There is no prohibition in any of the service rules that there cannot be any re-employment of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea, C.J., dealt with the scope of Articles 73 and 162 of the Constitution. The learned Chief Justice observed that neither of the two Articles contains any definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope. It was observed: Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution. In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned with the office that the Judges purported to hold. We are not concerned with the particular incumbents of the office. So long as the office was validly created, it matters not that the incumbent was not validly appointed. A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session and his judgments and orders would be those of the Court of Session. They would continue to be valid as the judgments and orders of the Court of Session, notwithstanding that his appointment to such Court might be declared invalid. On that account alone, it can never be said that the procedure prescribed by law has not been followed. It would be a different matter if the constitution of the court itself is under challenge. We are not concerned with such a situation in the instant cases. We, therefore, find no force in any of the submissions of the learned Counsel. 16. The aforesaid judgment relies upon Pulin Behari Das v. King Emperor 1911 SCC OnLine Cal 159 : (1911-12) 16 CWN 1105, wherein Justice Mookerjee held the following:- The doctrine that the acts of officers de facto performed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation that the Local Government was irregularly constituted and the Sessions Judge irregularly appointed. The first ground upon which the legality of the trial is assailed must consequently be overruled. 17. The de facto doctrine as encapsulated above has been reiterated by this Court, even in the context of an executive appointment, in the judgment reported as Pushpadevi M. Jatia v. M. L. Wadhawan, Additional Secretary, Government of India and Ors. (1987) 3 SCC 367. In this case, the Additional Secretary to the Government of India had detained Mohanlal Jatia vide a Government order under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, on being satisfied that it was necessary to detain him. Herein, the Additional Secretary relied on statements recorded by one R.C. Singh whom the appellant contended was not a gazetted officer of enforcement under FERA, and therefore statements recorded by the officer could not be relied upon to detain him. It was discussed: 17. In any event, the learned Counsel further contends that R.C. Singh was clothed with the insignia of office and he was purporting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Nadu Magnesite, Ltd., Salem Ors. (1993) 2 LLN 353 , the Madras High Court held as under: 12. An officer de facto is one who by some colour or right is in possession of an office and for the time being performs his duties with public acquiescence, though having no right in fact. Whereas an intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence. No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de-facto arc not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. There is an important principle, which finds concise expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of Ch. Sudhakar was issued when he was performing his duties in public interest and not for his own benefit. Therefore, such authorisation is valid and binding as if it was an act of an officer de jure. 22. We further find that the High Court, while deciding a petition for quashing of proceedings under Section 482 of the Code, could not have commented upon the nature of employment of Sri K. Sampath Kumar, as such a question does not fall within the jurisdiction of the High Court whilst deciding the aforementioned petition. 23. Sri K. Sampath Kumar has authorised Ch. Sudhakar and the final report had been filed after the investigation conducted by the latter, in terms of clause (c) of Section 17 of the Act. In this regard, it cannot be said that the investigation was not conducted in a manner contemplated under law. Thus, Ch. Sudhakar was an authorized Officer, competent to investigate and file a report for the offences under the Act including of an offence under Section 13(1)(e) of the Act. 24. Another finding recorded by the High Court is that the informant cannot be the investigating officer. Such a finding is based upon Ch. Sudhakar being both the informant and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the receipt of a complaint of a cognizable offence, to satisfy himself that prima facie, the allegations levelled against the accused in the complaint are credible. It was thus held as under:- 73. In terms of the language used in Section 154 of the Code, the police is duty bound to proceed to conduct investigation into a cognizable offence even without receiving information (i.e. FIR) about commission of such an offence, if the officer in charge of the police station otherwise suspects the commission of such an offence. The legislative intent is therefore quite clear, i.e., to ensure that every cognizable offence is promptly investigated in accordance with law. This being the legal position, there is no reason that there should be any discretion or option left with the police to register or not to register an FIR when information is given about the commission of a cognizable offence. Every cognizable offence must be investigated promptly in accordance with law and all information provided under Section 154 of the Code about the commission of a cognizable offence must be registered as an FIR so as to initiate an offence. The requirement of Section 154 of the Code is only that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated against an accused without conducting a preliminary inquiry. 31. In M.R. Hiremath, this Court set aside an order on an application for discharge under Section 239 of the Code, inter alia, for the reason that a certificate under Section 65B of Evidence Act had not been produced while relying upon the evidence of a spy camera. An argument was raised that the spy camera has been given by the investigating officer even before investigations were formally started. On the strength of such fact, an argument was raised by Mr. Guru Krishna Kumar, learned counsel for the Accused Officer, that without conducting a preliminary inquiry the FIR could not have been lodged. This Court in M.R. Hiremath held that when the investigating officer had handed over the spy camera to the complainant, the purpose was to ascertain, in the course of the preliminary inquiry, whether information furnished by the complainant could form the basis of lodging an FIR. It was held to be a preliminary inquiry to ascertain whether the information revealed a cognizable offence. The Court held as under: 23. In the present case, on 15-11-2016, the complainant is alleged to have met the respondent. During the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 34. Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari is not required to be mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient. 35. We also do not find any merit in the argument that there has been no sanction before the filing of the report. The sanction can be produced by the prosecution during the course of trial, so the same may not be necessary after retirement of the Accused Officer. This Court in K. Kalimuthu v. State by DSP (2005) 4 SCC 512 held as under: 15. The question relating to the need of sanction under Section 197 of the Code is not necess ..... 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