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TMI Blog2019 (12) TMI 1632X X X X Extracts X X X X X X X X Extracts X X X X ..... Superintendent of Police (for short, 'DSP') at about 10 am. The FIR reads as under: "On receipt of credible information that Sri. Managipet @ Mangipet Sarveshwar Reddy S/o. Late Narsimha Reddy, Age 51 years, Occ: OSD, Rang Reddy District, Vikarabad R/o Flat No. 401, Venkatadri Apartments, Behind HPCL Petrol Pump, Gachibowli, Hyderabad is a native of Chilkatonipally (V) Veltoor (Post), Wanaparthy Tq., Mahaboobnagar District. The S.O. joined Govt. service on 19-09-1985 as Sub Inspector of Police and promoted as Inspector of Police on 04-04-1995 and Dy. Supdt. of Police, in the year 2007. He worked as SI at Rayadurgam, Hayathnagar, Malkajigiri, as Circle Inspector at Huzurnagar of Nalgonda District Narsingi, Uppal, Rajendranagar of Cyberabad Commissionerate, R.R. District as ACP., Rajendranagar for about 4 years and presently working as OSD, Ranga Reddy District, Vikarabad. During the period of his service he acquired Six Multistoried Buildings, One Multistoried commercial complex, 27 plots and 26 Acres of land at Hyderabad, Ranga Reddy and Mahboobnagar Districts and one Scorpio car, one Hyundai Verna car and Maruti Car, all worth Rs.3,55,61,500/-. The probable income of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor on 4th April, 1997. He was further promoted as DSP in the year 2007. In pursuance of the FIR filed, a draft final report was prepared on 30th April, 2015 but the same was submitted on 9th October, 2017 after the Accused Officer retired on 31st May, 2017. Section 17 of the Prevention of Corruption Act, 1988 (for short, 'Act') pertains to investigation into cases under the Act. A Police officer not below the rank of Inspector, authorized by the State Government by general or special order, may also investigate any such offence. An offence under clause (e) of subsection (1) of Section 13 of the Act cannot be investigated without an order of the Police Officer not below the rank of Superintendent of Police. Section 17 of the Act reads as under: "17. Persons authorised to investigate.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,- a) xx xx xx b) xx xx xx c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service of Drugs Inspectors in the Union Territory of Daman and Diu had selected him. His contractual appointment for six months was dehors the rules. The appointment was not made in a manner which could even remotely be said to be compliant with Article 16 of the Constitution. The appointment being purely contractual, the stage of acquiring the status of a government servant had not arrived. While working as a contractual employee Respondent 1 was not governed by the relevant service rules applicable to Drugs Inspector. He did not enjoy the privilege of availing casual or earned leave. He was not entitled to avail the benefit of general provident fund nor was he entitled to any pension which are normal incidents of a government service. Similarly, he could neither be placed under suspension entitling him to a suspension allowance nor could he be transferred. Some of the minor penalties which can be inflicted on a government servant while he continues to be in government service could not be imposed upon him nor was he entitled to any protection under Article 311 of the Constitution. In view of these features it is not possible to hold that Respondent 1 was a government servant." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e power of the State Legislature i.e. if the State Legislature has jurisdiction to make law with respect to a subject, the State executive can make regulations and issue government orders with respect to it. This Court held as under: "48. The powers of the executive are not limited merely to the carrying out of the laws. In a welfare State the functions of the executive are ever widening, which cover within their ambit various aspects of social and economic activities. Therefore, the executive exercises power to fill gaps by issuing various departmental orders. The executive power of the State is coterminous with the legislative power of the State Legislature. In other words, if the State Legislature has jurisdiction to make law with respect to a subject, the State executive can make regulations and issue government orders with respect to it, subject, however, to the constitutional limitations. Such administrative rules and/or orders shall be inoperative if the legislature has enacted a law with respect to the subject. Thus, the High Court was not justified in brushing aside the Government Order dated 16-11-1951 on the ground that it contained administrative instructions." 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as discharged the duties of Joint Director in the Anti-Corruption Bureau in exercise of the powers conferred by the State Government. 15. We further find that Sri K. Sampath Kumar's acts whilst discharging the duties of Joint Director in the Anti-Corruption Bureau were within the scope of the assumed official authority in public interest and not for his own benefit. Therefore, acts undertaken in this regard by the officer will be taken to be valid. This Court in a judgment reported as Gokaraju Rangaraju v. State of Andhra Pradesh (1981) 3 SCC 132 held as under: "17. A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief... 19. In our view, the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not necessary for our present purposes to investigate exhaustively all the qualifications or limitations subject to which the de facto doctrine has to be applied. The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where those interests were involved in the official acts of persons exercising the duties of an office without being lawful Officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large. Indeed, if any individual or body of individuals were permitted at his or their pleasure to collaterally challenge the authority of and to refuse obedience to the Government of the State and the numerous functionaries through whom it exercised its various powers, on the ground of irregular existence or defective title, insubordination and disorder of the worst kind would be encouraged. For the good order and peace of society their authority must be upheld until in some regular mode their title is directly investigated and determined, [See the observations in Scadding v. Lorant [???] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not a gazetted officer of Enforcement within the meaning of Section 40(1) of the FERA appears to be wholly misconceived besides being an afterthought. The validity of appointment of R.C. Singh to be an officer of Enforcement under this Act cannot be questioned....... 20. ... Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions. The official acts of such persons are recognised as valid under the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. In Gokaraju Rangaraju case [(1981) 3 SCC 132 : 1981 SCC (Cri) 652 : (1981) 3 SCR 474] Chinnappa Reddy, J., explained that this doctrine was engrafted as a matter of policy and necessity to protect the interest of the public." 18. Further, a Full Bench of Kerala High Court in a judgment reported as P.S. Menon v. State of Kerala AIR 1970 Ker 165 held that the de facto doctrine was engrafted as a matter of policy and necessity to protect the interest of the public as well as the individuals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment of the State and the numerous functionaries through whom it exercised its various powers on the ground of irregular existence of defective title insubordination and disorder of the worst kind would be encouraged. For the good order and peace of society, their authority must be up held until in some regular mode their title is directly investigated and determined. When one holds office under colour of lawful authority, whatever be the defect of his title lo the office, acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy and acts done by an officer de jure. The defective appointment of a de facto officer may be questioned directly in a proceeding lo which he may be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence lo the officer concerned. So the writ petitioner cannot be heard to say that Sri Madhavan Nair, the second respondent had no authority to preside over the meeting of the Board of Directors wherein it was resolved lo place him under suspension and initiate disciplinary action." 20. The de facto do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal (supra) is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations. We therefore hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by the individual facts of the case." 26. Thus, we find that the orders of the High Court to quash the proceedings against the Accused Officer are not sustainable and are consequently, set aside. Accordingly, the appeal filed by the State is allowed and the matter is remitted back to the learned trial court for further proceedings in accordance with law. 27. Coming to the appeal filed by the Accused Officer, Mr. Guru Krishna Kumar, learned senior counsel vehemently argued that a preliminary inquiry before the registration of a crime is mandatory. Reference was made to a judgment reported as Lalita Kumari v. Government of Uttar Pradesh & Ors. (2014) 2 SCC 1 as well as the judgment reported as State by Karnataka Lokayukta Police Station, Bengaluru v. M.R. Hiremath (2019) 7 SCC 515 28. In Lalita Kumari, the Court has laid down the cases in which a preliminary inquiry is warranted, more so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iry 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. iv) 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. v) 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. vi) 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." 30. It must be pointed that this Court has not held that a preliminary inqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. That is the test laid down in Lalita Kumari. 33. In the present case, the FIR itself shows that the information collected is in respect of disproportionate assets of the Accused Officer. The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Herein, relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable offence. Therefore, once the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed. Reference in this regard, is made to a judgment of this Court reported as State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 wherein, this Court held inter alia that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requisite rank and status required under Section 17 of the Act, such lapse would be an irregularity, however unless such irregularity results in causing preju- dice, conviction will not be vitiated or be bad in law. Therefore, the lack of sanction was rightly found not to be a ground for quashing of the proceedings. 37. Mr. Guru Krishna Kumar further refers to a Single Bench judgment of the Madras High Court in M. Soundararajan v. State through the Deputy Superintendant of Police, Vigilance and Anti Corruption, Ramanathapuram Crl. A. (MD) No. 488 of 2018 and Crl. M.P. (MD) No. 8712 of 2018 decided on 30th October, 2018. to contend that amended provisions of the Act as amended by Act XVI of 2018 would be applicable as the Amending Act came into force before filing of the charge sheet. We do not find any merit in the said argument. In the aforesaid case, the learned trial court applied amended provisions in the Act which came into force on 26th July, 2018 and acquitted both the accused from charge under Section 13(1)(d) read with 13(2) of the Act. The High Court found that the order of the trial court to apply the amended provisions of the Act was not justified and remanded the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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