47. Confined to what the High Court has held in the impugned judgment and order, the short question that emerges for a decision is whether the High Court was justified in its interference with the FIR.
48. The additional question that we are called upon to answer in view of the plea of mala fide raised by Mr. Jethmalani and the contents of the application for directions filed on behalf of AS and YS is, whether and to what extent would a court exercising power under Article 226 of the Constitution or section 482 of the Code of Criminal Procedures (hereafter ‘Cr. P.C.’, for short) be justified to quash a first information report registered under section 13 of the P.C. Act while the police embarks on an investigation against a public servant particularly in view of what has been laid down in clause (7) of paragraph 102 of the decision in Bhajan Lal (supra).
SUPREME COURT OBSERVATION ON CORRUPTION: 49. We preface our discussion, leading to the answers to the above two questions, taking note of a dangerous and disquieting trend that obviously disturbs us without end. Though it is the preambular promise of the Constitution to secure social justice to the people of India by striving to achieve equal distribution of wealth, it is yet a distant dream. If not the main, one of the more prominent hurdles for achieving progress in this field is undoubtedly ‘corruption’. Corruption is a malaise, the presence of which is all pervading in every walk of life. It is not now limited to the spheres of activities of governance; regrettably, responsible citizens say it has become a way of one’s life. Indeed, it is a matter of disgrace for the entire community that not only on the one hand is there a steady decline in steadfastly pursuing the lofty ideals which the founding fathers of our Constitution had in mind, degradation of moral values in society is rapidly on the rise on the other. Not much debate is required to trace the root of corruption. ‘Greed’, regarded in Hinduism as one of the seven sins, has been overpowering in its impact. In fact, unsatiated greed for wealth has facilitated corruption to develop like cancer. If the corrupt succeed in duping the law enforcers, their success erodes even the fear of getting caught. They tend to bask under a hubris that rules and regulations are for humbler mortals and not them. To get caught, for them, is a sin. Little wonder, outbreak of scams is commonly noticed. What is more distressing is the investigations/inquiries that follow. More often than not, these are botched and assume the proportion of bigger scams than the scams themselves. However, should this state of affairs be allowed to continue? Tracking down corrupt public servants and punishing them appropriately is the mandate of the P.C. Act. “We the people”, with the adoption of our Constitution, had expected very high standards from people occupying positions of trust and responsibility in line with the Constitutional ethos and values. Regrettably, that has not been possible because, inter alia, a small section of individuals inducted in public service for ‘serving the public’ appear to have kept private interest above anything else and, in the process, amassed wealth not proportionate to their known sources of income at the cost of the nation. Although an appropriate legislation is in place to prevent the cancer of corruption from growing and developing, wherefor maximum punishment by way of imprisonment for ten years is stipulated, curbing it in adequate measure, much less eradicating it, is not only elusive but unthinkable in present times. Since there exists no magic wand as in fairy tales, a swish of which could wipe out greed, the Constitutional Courts owe a duty to the people of the nation to show zero tolerance to corruption and come down heavily against the perpetrators of the crime while at the same time saving those innocent public servants, who unfortunately get entangled by men of dubious conduct acting from behind the screen with ulterior motives and/or to achieve vested interests. The task, no doubt, is onerous but every effort ought to be made to achieve it by sifting the grain from the chaff. We leave the discussion here with the fervent hope of better times in future.
WHEN DOES CRIMINAL MISCONDUCT ATTRACTS TO PUBLIC SERVANTS? 50. Insofar as the merits of the controversy is concerned, we must necessarily begin with a reading of the relevant provisions of the P.C. Act. “Public servant” is defined in section 2(c). It is not disputed that AS as well as YS is comprehended within such meaning. Section 13(1) of the P.C. Act defines “criminal misconduct”. A public servant is said to commit the offence of criminal misconduct if (a) he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do, or (b) he intentionally enriches himself illicitly during the period of his office. Thus, intentional enrichment illicitly by a public servant during the period of his office is a criminal misconduct. There are two explanations in section 13(1). The first explanation provides that a person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for. The other explanation defines “known sources of income” to mean income received from any lawful sources. To attract this provision, the officer sought to be proceeded against must be a public servant. He must be found to be in possession of, by himself, or through any person on his behalf, at any time during the period of his office, pecuniary resources or property disproportionate to his known sources of income. If he is unable to satisfactorily account for the same, he shall be liable to be proceeded against for having committed criminal misconduct and suitably punished and fined if the charge is proved for such period, as provided in sub-section (2). Undoubtedly, this is a presumptive finding but that finding is based on three facts, viz. being a (i) public servant, (ii) if at any time during the period of his office, he has been in possession, by himself or through any person on his behalf, of pecuniary resources or property disproportionate to his known sources of income, then (iii) he is enjoined to satisfactorily account for the same. The offence of criminal misconduct is committed by a public servant if (ii) is proved and (iii) does not happen. Therefore, if a prosecution is launched under sub-section (1) of section 13 of the P.C. Act and the allegation is proved at the trial, the concerned public servant is liable to punishment under sub-section (2) thereof.
IMPORTANCE OF PRELIMINARY INQUIRY IN CORRUPTION [DISPROPORTIONATE ASSETS] CASES: 51. The law of the land abhors any public servant to intentionally enrich himself illicitly during the tenure of his service. Increase in the assets of such a public servant tantamount to constitutionally impermissible conduct and such conduct is liable to be put under the scanner of the P.C. Act. The Constitution Bench of this Court in its decision in Lalita Kumari Vs. Govt. of U.P [(2014) 2 SCC 1], inter alia, while observing that cases in which preliminary inquiry is to be conducted would depend upon the facts and circumstances of each case, also categorized cases (though not exhaustively) where preliminary inquiry, before registration of a first information report, could be conducted and included ‘corruption cases’ in such category. A preliminary inquiry or probe, we believe, becomes indispensable in a complaint of acquisition of disproportionate assets not only to safeguard the interest of the accused public servant, if such complaint were lodged with some malice, but also to appropriately assess the quantum of disproportionate assets should there be some substance in this complaint.
HOW TO CONDUCT PRELIMINARY INQUIRY? 52. In regard to a case of the type under consideration, particularly when the FIR has been registered pursuant to a preliminary inquiry into the complaint of US and is at its nascent stage, it is in course of an investigation that materials are required to be collected and based on such requisite evidence of possession of pecuniary resources or acquisition of assets or property disproportionate to the known sources of income of the concerned public servant that a police report under section 173(2), Cr.P.C could be laid. At the stage of conducting a preliminary inquiry, exercise of investigative powers being barred, such an inquiry is intended to facilitate the process of formation of opinion as to whether a first information report at all is required to be registered. During the tenure of his office under his employer, the public servant might not have even been suspected of being in possession of pecuniary resources or assets disproportionate to his known sources of income. Such assets or resources might have been held through somebody on his behalf. In such a scenario, it is indeed a difficult task for the Government – the employer – because of its impersonal character and the usual lethargy or indolence at Government levels to connect the officer with the resources or assets illicitly acquired. To weed out corrupt public servants, the Government has to engage sincere and dedicated personnel for collecting and collating the necessary material in this regard. If there be no interventions, the investigation that is likely to follow in terms of the Cr.P.C., could enable the investigating officer to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources in dispute. Since snapping of any link in the chain of circumstances could prove fatal to the whole exercise, it is of utmost necessity that care and dexterity are not compromised.
MISCALCULATIONS IN FIR CAN BE POINTED OUT IN INVESTIGATION: 56. It is true that the FIR could have been drafted better. Since a first information report is the starting point for a long drawn investigative process and such an investigation could be scuttled by an accused taking advantage of inept drafting of such report, this is an area where all the more care and dexterity is called for to prevent many a thing. However, nothing significant turns on the inept drafting of the FIR in this case since it does make out a case of cognizable offence having been committed by AS and YS. Indeed, if at all there are miscalculations arising out of arithmetical errors or misdescription of properties not belonging to AS and YS, they were/are free to point it out while joining the investigation. It is also open to them to point out to the investigating officer that there has been absolutely no suppression or non-disclosure of properties/assets and also that no activity amounting to ‘criminal misconduct’ had been committed by them. However, they chose to challenge the FIR on the specious ground that the same did not disclose a cognizable offence.
INHERENT POWERS OF HIGH COURT WHILE DEALING IN P.C Act – EXPLAINED: 59. It seems that such note of caution did not have the desired effect in all cases resulting in this Court, in its subsequent decisions, reemphasizing the need for the high courts to bear in mind the settled principle of law that whenever its powers are invoked either under Article 226 of the Constitution or section 482, Cr. P.C. for quashing a first information report/complaint, the courts would not be justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein (emphasis ours). We may, in this regard, profitably refer to the decision of this Court while dealing with a case under the P.C. Act in State of Maharashtra Vs. Ishwar Piraji Kalpatri [(1996) 1 SCC 542].
PROBABILITY IN FIR IS BETTER THAN MERE SUSPICION: 61. Thus, it being the settled principle of law that when an investigation is yet to start, there should be no scrutiny to what extent the allegations in a first information report are probable, reliable or genuine and also that a first information report can be registered merely on suspicion, the High Court ought to have realized that the FIR which, according to it, was based on “probabilities” ought not to have been interdicted. Viewed through the prism of gravity of allegations, a first information report based on “probability” of a crime having been committed would obviously be of a higher degree as compared to a first information report lodged on a “mere suspicion” that a crime has been committed. The High Court failed to bear in mind these principles and precisely did what it was not supposed to do at this stage. We are, thus, unhesitatingly of the view that the High Court was not justified in its interference on the ground it did.
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65. We, thus, answer the first question by holding that the High Court was not justified in its interference with the investigative process and committed an error of law in quashing the FIR on the grounds it did.
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PROPOSED ACCUSED AS PARTY IN INQUIRY: 72. Secondly, neither the head of the political executive (the incumbent Chief Minister) nor that of the administrative executive (the Chief Secretary) was personally arrayed as a party to any of the proceedings. Now, law is well-settled that the person against whom mala fide or bias is imputed should be impleaded as a party respondent to the proceedings eo nomine and that in his/her absence no inquiry into the allegations can be made. This is what the decision in State of Bihar vs. P.P. Sharma [1992 Supp. (1) SCC 222] lays down. Having regard thereto, since the incumbent holding the office of Chief Minister of the State against whom mala fide is alleged is not on record, we are loath to attach any importance to the allegations of mala fide even if there be any.
PARTY: THE STATE OF CHATTISGARH & ANR vs. AMAN KUMAR SINGH & ORS. ETC – CRIMINAL APPEAL NOS………………………… OF 2023 (@SLP (CRL.) NOS.1703-1705 OF 2022) – MARCH, 2023.
URL: https://main.sci.gov.in/supremecourt/2022/3247/3247_2022_14_1501_42417_Judgement_01-Mar-2023.pdf
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