In corruption complaints against public servants, preliminary enquiry at pre-FIR stage not only permissible but also desirable: Supreme Court

In case of a complaint against a public servant regarding accumulating assets disproportionate to 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 not only permissible but also desirable, the Supreme Court reiterated (Charansingh v. State of Maharashtra).After such preliminary enquiry before the registration of FIR, 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, the Court said.However, if the material discloses prima facie 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 (CrPC), the Court added..“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. Such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made,” the judgment said..The judgment was rendered by Justices DY Chandrachud and MR Shah in an appeal filed against a November 2020 order of Bombay High Court.The Nagpur Bench of the Bombay High Court had dismissed a writ petition filed by appellant challenging a notice dated March 4, 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..The appellant was also asked to provide documents relating to his property, assets, bank statements, income tax returns.The appellant challenged the notice before the High Court on the ground that the notice was without any statutory force since there was no FIR against the appellant.It was also submitted that the said notice was issued in a purported exercise of power under Section 160 of CrPC, however, Section 160 CrPC 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 anybody to give statement to the police..On the other hand, it was the case on behalf of the State that the appellant was 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. Heavy reliance was placed upon paragraphs 89, and 120 of the said decision.The High Court refused to quash the said notice primarily relying upon the decision of this Court in Lalita Kumari.The question before the Supreme Court was whether an enquiry at pre-FIR stage would be legal and to what extent such an enquiry is permissible?.The Supreme Court said that the issue is covered by Lalita Kumari judgment.The Court noted that in Lalita Kumari, it had held 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. 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,” the judgment said..Lalita Kumari also laid down the type and category of cases for which a preliminary enquiry may be made. This included corruption cases, the Court noted.Further, the Court also adverted to the decision 1970 judgment of P Sirajuddin v. State of Madras in which case the Supreme Court had expressed the need for a preliminary enquiry before proceeding against public servants who are charged with corruption or misconduct.Thus, the Court concluded that an enquiry at pre-FIR stage is not only permissible but also desirable where the allegations are of misconduct or corrupt practice of acquiring the assets/properties disproportionate to known sources of income..It, therefore, dismissed the appeal. .[Read Judgment]