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Dhanraj N. Asawani vs Amarjeetsingh Mohindersingh Basi

Supreme Court25 July 2023Dhananjaya Y Chandrachud

Ratio decidendi

The rule this decision rests on

1. Section 81(5B) of the Maharashtra Co-operative Societies Act, 1960 casts a positive obligation on auditors and the Registrar to file an FIR when they discover financial irregularities, but neither expressly nor by necessary implication does it preclude any person other than the auditor or Registrar from setting the criminal law in motion. 2. Where a special statute casts a positive obligation on specified persons to take action but does not use negative language (such as "no" or express prohibition) to bar others from doing the same, it cannot be construed as excluding by necessary implication the right of any citizen to lodge an FIR under Section 154 of the Code of Criminal Procedure, 1973. 3. Statutory construction requires that exclusion by necessary implication can only be inferred from the language and intent of a statute; plain reading of a provision that imposes duty without prohibitory language does not support inference that the legislature intended to bar others from exercising their general right to set criminal law in motion. 4. The general principle that absent a specific bar or statutory exception the criminal law can be set in motion by any individual is not displaced by special legislation that casts a supervisory duty on particular persons, unless the special statute contains express or necessarily implied prohibition to that effect. 5. Once criminal proceedings are initiated by the filing of an FIR, the police have an independent power and duty under the Code of Criminal Procedure to investigate the alleged offence, and this investigative power is not curtailed by provisions of special statutes that cast reporting obligations on particular persons.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

Crl.A. 2093/2023

Reportable 2023 INSC 710

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 2093 of 2023 (Arising out of SLP (Crl) No 1715 of 2022)

Dhanraj N Asawani Appellant

Versus

Amarjeetsingh Mohindersingh Basi and Others Respondents

WITH

Special Leave Petition (Criminal) No 2246 of 2022

Signature Not Verified

Digitally signed by CHETAN KUMAR Date: 2023.08.14 09:57:13 IST Reason:

1 Crl.A. 2093/2023

JUDGMENT

Dr. Dhananjaya Y Chandrachud, CJI

1. Leave granted.

2. This appeal arises from a judgment dated 16 November 2021 of a Division

Bench of the High Court of Judicature at Bombay by which it has quashed

FIR No 806 of 2019 lodged by the appellant for offences punishable under

Sections 420, 406, 409, 465, 467, 468 and 471 read with Section 34 of the

Indian Penal Code1 at Police Station Pimpri, Chinchwad.

3. The first respondent was the Chief Executive Officer of Seva Vikas Co-oper-

ative Bank, registered under the provisions of the Maharashtra Co-operative

Societies Act 19602. The second respondent is the former Chairperson of

the bank. Several complaints were lodged by individuals, members, share-

holders, and depositors of the bank against the management alleging acts

of cheating and misappropriation of funds. On the basis of the complaints,

the Economic Offences Wing3 at Pimpri-Chinchwad registered an FIR and

conducted investigations in January 2019 and thereafter. FIR Nos. 235 and

241 of 2019 were registered at the behest of the bank for offences

punishable under Sections 406 and 420 read with Section 34 of the IPC.

During the course of the investigation, the EOW issued a communication on

1 “IPC” 2 “1960 Act” 3 “EOW” 2 Crl.A. 2093/2023

16 February 2019 to the District Sub Registrar, Co-operative Societies,

Pune, inter alia, seeking details and information regarding the forensic audit,

credit policy, collateral policy and loan policies, and the RBI guidelines

pertaining to the affairs of the bank.

4. On 2 May 2019, a letter was addressed by the Police Inspector of the EOW,

Pimpri-Chinchwad to the Commissioner of Co-operation and Registrar of

Co-operative Societies Maharashtra seeking a copy of the forensic audit

report of the bank. By a letter dated 9 May 2019, the Commissioner of

Co-operation and Registrar of Co-operative Societies requested the Joint

Registrar (Audit) to conduct an investigation and to provide the documents

which were sought by the EOW. It appears that thereafter an investigation

was conducted and an inspection report dated 12 June 2019 was submitted.

5. Based on an application under the Right to Information Act 2005, the

appellant sought a copy of the inspection report. On 16 June 2019, the Joint

Registrar submitted a copy of the inspection report to the appellant.

According to the appellant, the report indicated that loans were advanced to

persons and entities who were not eligible or creditworthy and they were

diverted for purposes other than those for which they were availed; and

monies were siphoned off and misappropriated. It has been alleged that the

bank did not take steps to recover the loans and a large number of accounts

were declared as non-performing assets.

6. On 19 July 2019, the appellant lodged FIR No. 806 of 2019 at PS Pimpri,

Pimpri-Chinchwad against the first and second respondents alleging the

3 Crl.A. 2093/2023

commission of offences under Sections 420, 406, 409, 465, 467, 468 and

471 read with Section 34 of the IPC. The substance of the FIR was based

on the inspection report prepared by the Joint Registrar (Audit) which

allegedly indicated financial irregularities by the office bearers of the bank.

7. The High Court was moved by the first and second respondents in a writ

petition under Article 226 of the Constitution for quashing the FIR. The High

Court allowed the petition by its impugned judgment dated 16 November

2021. The High Court held that Section 81(5B) contains special provisions

for the submission of a special report and the obtaining of the permission of

the Registrar before the lodging of an FIR. It held that these provisions

would be rendered otiose if the general provisions in the Code of Criminal

Procedure 19734 were to apply and hence the latter must yield to the special

procedure which has been prescribed under the 1960 Act. The High Court

held that where the allegations in regard to the commission of offences are

solely based on an audit which has been conducted under Section 81, the

peremptory procedure prescribed in Section 81(5B) must be scrupulously

followed. The High Court concluded that the FIR was based on the report of

the auditor who was appointed under Section 81(3)(c) and hence it was not

open to the appellant to fall back on the general principle that the criminal

law can be set in motion by any individual upon which the police are duty

bound to register an FIR absent a statutory prohibition.

8. We have heard Mr Prashant Shrikant Kenjale, counsel for the appellant and

Mr V Giri and Mr Deepak Nargolkar, senior counsel with Mr Shantanu

4 “CrPC” 4 Crl.A. 2093/2023

Phanse, counsel for the respondents. Mr A N S Nadkarni, senior counsel

and Mr Sunil Fernandes, counsel appeared for the intervenor.

9. Notice was issued by this Court in these proceedings on 29 April 2022 since

the interpretation of the provisions of Section 81(5B) of the 1960 Act is

involved.

10. The 1960 Act was enacted to provide orderly development of the co-opera-

tive movement in Maharashtra. Chapter VIII of the 1960 Act provides for

‘audit, inquiry, inspection and supervision’. Section 81 mandates the society

to cause its accounts to be audited at least once every financial year by an

auditor from a panel prepared by the Registrar and approved by the State

government. The first proviso to Section 81(1)(a) empowers the Registrar to

audit or cause to be audited the accounts of a society by a panel of auditors

approved by the State government. Section 81(3) stipulates that the

Registrar or the person authorized shall for the purpose of audit at all times

have access to books, accounts, documents, papers, securities, cash and

other properties belonging to or in the custody of the co-operative society.

Section 81(3)(c) empowers the Registrar or any person authorized to carry

out or cause to be carried out a test audit of the accounts of the co-operative

society. Section 81(5B) details the subsequent actions required to be taken

by the auditor or the Registrar after the preparation of the audit report:

“81(5B) The auditor shall submit his audit report within a period of one month from its completion and in any case before issuance of notice of the annual general body meeting to the society and to the Registrar in such form as may be specified by the Registrar, on the accounts examined by him and on the balance sheet and profit and loss account as on the date and for the period up to which the accounts have been audited, and shall state whether in his opinion and to the

5 Crl.A. 2093/2023

best of his information and according to the Explanation given to him by the society, the said accounts give all information required by or under this Act and present the true and fair view of the financial transaction of the society:

Provided that, where the auditor has come to a conclusion in his audit report that any person, is guilty of any offence relating to the accounts or any other offences, he shall file a specific report to the Registrar within a period of fifteen days from the date of submission of his audit report. The auditor concerned shall, after obtaining written permission of the Registrar, file a First Information Report of the offence. The auditor, who fails to file First Information Report, shall be liable for disqualification and his name shall be liable to be removed from the panel of auditors and he shall also be liable to any other action as the Registrar may think fit:

Provided further that, when it is brought to the notice of the Registrar that, the auditor has failed to initiate action as specified above, the Registrar shall cause a First Information Report to be filed by a person authorised by him in that behalf:

Provided also that, on conclusion of his audit, if the auditor finds that there are apparent instances of financial irregularities resulting into losses to the society caused by any member of the committee or officers of the society or by any other person, then he shall prepare a Special Report and submit the same to the Registrar alongwith his audit report. Failure to file such Special Report, would amount to negligence in the duties of the auditor and he shall be liable for disqualification for appointment as an auditor or any other action, as the Registrar may think fit.” (emphasis supplied)

11. Under Section 81(5B), the auditor is under an obligation to submit an audit

memorandum duly signed by them to the society and to the Registrar on the

accounts examined by them and on the balance sheet and profit and loss

account as on the date and for the period up to which the accounts have

been audited. The auditor has to state whether in their opinion the accounts

give all the information by or under the 1960 Act and present a true and fair

view of the financial transactions of the society. In terms of the first proviso

to Section 81(5B), when the auditor has come to the conclusion in the audit

report that any person is guilty of any offence relating to the accounts or any

other offences, they are obligated to file a specific report to the Registrar.

6 Crl.A. 2093/2023

The auditor is then required, after obtaining the written permission of the

Registrar, to file an FIR. The second proviso stipulates that when it is

brought to the notice of the Registrar that the auditor has failed to initiate

action as specified in the first proviso, the Registrar shall cause an FIR to be

filed by a person authorized by them in that behalf. In terms of the third

proviso, if the Registrar finds apparent instances of financial irregularities

resulting into losses to the society at the behest of a member of the

committee or officers or by any other person, he has to prepare a special

report and submit it to the Registrar together with his audit report.

12. As already noted, in the present case, several FIRs have been lodged in

respect of the affairs of the bank. This included three FIRs dated 11 and 12

August 2021, FIR Nos 525, 526 and 527 of 202, which were lodged by the

auditor. These FIRs were lodged soon after the audit report dated 6 August

2021. At this stage, it would be material to note that the FIR which was

lodged by the appellant was on 19 July 2019, prior to the date of the audit

report. The narrow issue which falls for consideration in the present appeal

is whether the provisions of Section 81(5B) can be construed as preventing

a share holder of the society such as the appellant, who was also an

erstwhile director, from independently setting the criminal law in motion.

13. The respondents have submitted that the institution of the FIR by the

appellant, which is based on the audit report, is in contravention of Section

81(5B). It is contended that only the auditor or the Registrar is empowered

to file an FIR in terms of Section 81(5B). The substance of the respondents’

7 Crl.A. 2093/2023

argument is that the procedure laid down under Section 81(5B) is a special

procedure, and will prevail over Section 154 of the CrPC. To fortify their

submission, the respondents have relied on the decisions of this Court in

Jeewan Kumar Raut v. CBI5 and Jamiruddin Ansari v. CBI.6

14. The High Court was of the view that since the provisions of the 1960 Act are

special in the sense that they govern co-operative societies in the state, the

provisions of Section 81(5B) would preclude the registration of an FIR at the

behest of a person, such as the appellant, who is a shareholder of the

co-operative society. We are unable to accept the view of the High Court.

Neither expressly nor by necessary implication does the 1960 Act preclude

the setting into motion of the criminal law by any person other than the

auditor or the Registrar.

15. Section 4 of the CrPC provides that all offences under the IPC shall be

investigated, inquired, and tried according to the provisions of the CrPC.

Section 4(2) structures the application of the CrPC in situations where a

special procedure is prescribed under any special enactment. 7 Section 4 is

extracted below:

4. Trial of offences under the Indian Penal Code and other laws.

— (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise

5 (2009) 7 SCC 526 6 (2009) 6 SCC 316 7 See State of Punjab v. Balbir Singh, (1994) 3 SCC 299; Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440

8 Crl.A. 2093/2023

dealing with such offences.

16. Section 4(2) lays down that the provisions of the CrPC shall apply to all

offences under any other law apart from the IPC. However, the application of

the CrPC will be excluded only where a special law prescribes special

procedures to deal with the investigation, inquiry, or the trial of the special

offence. For instance, in Mirza Iqbal Hussain v. State of Uttar Pradesh,8

this Court was called upon to determine whether the trial court had

jurisdiction to pass an order of confiscation under the Prevention of

Corruption Act, 1947. This Court held that the provisions of the CrPC would

apply in full force because the Prevention of Corruption Act, 1947 did not

provide for confiscation or prescribed any mode by which an order of

confiscation could be made. Therefore, it was held that a court trying an

offence under the Prevention of Corruption Act, 1947 was empowered to

pass an order of confiscation in view of Section 452 of the CrPC. In

determining whether a special procedure will override the general procedure

laid down under the CrPC, the courts have to ascertain whether the special

law excludes, either specifically or by necessary implication, the application

of the provisions of the CrPC.

17. The CrPC provides the method for conducting investigation, inquiry, and trial

with the ultimate objective of determining the guilt of the accused in terms of

the substantive law. The criminal proceedings kick in when the information

of the commission of an offence is provided to the police or the magistrate.

Section 154 of the CrPC details the procedure for recording the first

8 (1982) 3 SCC 516 9 Crl.A. 2093/2023

information in relation to the commission of a cognizable offence. It provides

that any information relating to the commission of a cognizable offence if

given orally to an officer in charge of a police station shall be reduced into

writing by them or under their direction. The information provided by the

informant is known as the FIR.9

18. In Lalita Kumari v. Government of U P,10 a Constitution Bench of this

Court held that the main object of an FIR from the point of the view of the

informant is to set the criminal law in motion and from the point of view of

the investigating authorities is to obtain information about the alleged

criminal activity to take suitable steps to trace and punish the guilty. The

criminal proceedings are initiated in the interests of the public to apprehend

and punish the guilty.11 It is a well settled principle of law that absent a

specific bar or exception contained in a statutory provision, the criminal law

can be set into motion by any individual.12

19. In A R Antulay v. Ramdas Sriniwas Nayak,13 a Constitution Bench of this

Court held that the concept of locus standi of the complainant is not

recognized in the criminal jurisprudence, except in situations where the

statute creating an offence provides for the eligibility of the complainant. The

Court observed that the right to initiate criminal proceedings cannot be

whittled down because punishing an offender is in the interests of the

society:

9 T T Antony v. State of Kerala, (2001) 6 SCC 181 10 (2014) 2 SCC 1 11 Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288 12 Ratanlal v. Prahlad Jat, (2017) 9 SCC 340 13 (1984) 2 SCC 500 10 Crl.A. 2093/2023

“This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force [See Section 2(n) CrPC] is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender.

Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception.”

(emphasis supplied)

20. The 1960 Act is a special law enacted to govern co-operative societies in

Maharashtra. Section 81 of the 1960 Act casts a public duty on the auditor

and the Registrar to audit co-operative societies. In pursuance of this

objective, Section 81(5B) obligates them to register an FIR in case they

discover any financial irregularities in the audit reports of a co-operative

society. According to said provision, when the auditor comes to the

conclusion in the audit report that any person is guilty of an offence relating

to the accounts or of any other offences, they are mandated to file a specific

report to the Registrar. Where the auditor has failed to do so, the Registrar

is empowered to cause an FIR to be filed by a person authorized by them in

that behalf. The statutory obligation is cast on the auditor and the Registrar

because they are the first persons to acquire knowledge about the financial

irregularities in a co-operative society in the course of conducting an audit.

Since only the auditor and the Registrar are privy to such irregularity, the

11 Crl.A. 2093/2023

1960 Act obligates them to bring the information about the financial

irregularity to the knowledge of the police.

21. The respondents have relied on the decision of this Court in Jamiruddin

Ansari (supra) to contend that the 1960 Act, being a special law, will prevail

over the provisions of the CrPC. In Jamiruddin Ansari (supra) the issue

before a two-Judge Bench of this Court was whether Section 23(2) of the

Maharashtra Control of Organized Crime Act, 1999 14 excludes the

application of Section 156(3) of the CrPC. The MCOCA is a special law

enacted by the state legislature to prevent and control crimes by organized

crime syndicates or gangs. Section 23 of MCOCA begins with a

non-obstante clause. Section 23(2) provides that the special judge cannot

take cognizance of any offence under the MCOCA without the previous

sanction of a police officer not below the rank of the Additional Director

General of Police. The relevant clause is extracted below:

23. (1) Notwithstanding anything contained in the Code,—

(a) no information about the commission of an offence of organised crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police;

(b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police.

(2) No Special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police.

22. In Jamiruddin Ansari (supra), this Court held that the provisions of the

MCOCA will prevail over the provisions of the CrPC. The Court held that a

14 “MCOCA” 12 Crl.A. 2093/2023

Special Judge is precluded from taking cognizance of a private complaint

and order a separate inquiry without the previous sanction of the police

officer not below the rank of Additional Director General of Police:

67. We are also inclined to hold that in view of the provisions of Section 25 of MCOCA, the provisions of the said Act would have an overriding effect over the provisions of the Criminal Procedure Code and the learned Special Judge would not, therefore, be entitled to invoke the provisions of Section 156(3) CrPC for ordering a special inquiry on a private complaint and taking cognizance thereupon, without traversing the route indicated in Section 23 of MCOCA. In other words, even on a private complaint about the commission of an offence of organised crime under MCOCA cognizance cannot be taken by the Special Judge without due compliance with sub-section (1) of Section 23, which starts with a non obstante clause.

23. In view of the stringent provisions of the MCOCA, Section 23 provides a

procedural safeguard that no information of an offence alleged under the

MCOCA shall be recorded without the prior approval of an officer below the

rank of the Deputy Inspector General of Police. No investigation can be

carried out by an officer below the rank of Deputy Superintendent of Police.

Section 23(2) contains a specific bar against the taking of cognizance by a

Special Judge without the previous sanction of a police officer not below the

rank of Additional Director General of Police. In Rangku Dutta v. State of

Assam,15 this Court interpreted the purport of Section 20-A(2) of the

Terrorist and Disruptive Activities (Prevention) Act, 1987, 16 which was similar

to Section 23 of the MCOCA. Section 20-A of the TADA is extracted below:

“20-A.Cognizance of offence.—(1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.

(2) No court shall take cognizance of any offence under this Act

15 (2011) 6 SCC 358 16 “TADA” 13 Crl.A. 2093/2023

without the previous sanction of the Inspector General of Police, or as the case may be, the Commissioner of Police.”

This Court held that the above provision was mandatory for two reasons:

first, it commenced with an overriding clause; and second, it used the

expression “No” to emphasize its mandatory nature. The Court observed

that the use of the negative word “No” was intended to ensure that the

provision is construed as mandatory.

24. Section 81(5B) of the Act casts a positive obligation on the auditor or the

Registrar to file an FIR. It does not use any negative expression to prohibit

persons other than the auditor or the Registrar from registering an FIR.

Therefore, it would be contrary to basic principles of statutory construction to

conclude that Section 81(5B) debars persons other than the auditor or the

Registrar from filing an FIR. The ratio of the decision of this Court in

Jamiruddin Ansari (supra) is predicated on a provision of law distinct from

the statutory provision applicable to the present case.

25. Further reliance has been placed by the respondent on the decision of this

Court in Jeewan Kumar Raut (supra) to contend that Section 81(5B)

debars by necessary implication any person other than the auditor or the

Registrar from filing an FIR. In that case, the issue before this Court was

whether the provisions of the Transplantation of the Human Organs Act,

199417 barred the applicability of Section 167(2) of the CrPC pertaining to

the grant of default bail. Section 22 of the TOHO Act prohibits taking of

cognizance by courts except on a complaint made by an appropriate

17 “TOHO Act” 14 Crl.A. 2093/2023

authority. This Court held that the TOHO Act is a special statute and will

override the provisions of the CrPC so far as there is any conflict between

the provisions of the two enactments. The Court further held that the police

report filed by the CBI can only be considered as a complaint petition made

by an appropriate authority under Section 22 of the TOHO Act. Therefore,

the filing of a police report in terms of Section 173(2) of the CrPC was held

to be forbidden by necessary implication. Since CBI could not file a police

report under Section 173(2), Section 167(2) of the CrPC was also held to be

not applicable.

26. Exclusion by necessary implication can be inferred from the language and

the intent of a statute.18 In Jeewan Kumar Raut (supra), this Court looked at

the words of the statute as well as the overall scheme of investigation under

the CrPC to infer that Section 22 of the TOHO Act bars the applicability of

Section 167(2) of the CrPC by necessary implication. In the present case,

the 1960 Act casts a positive obligation on the auditor or the Registrar to file

an FIR when they discover a financial irregularity in a co-operative society.

Section 81(5B) demands accountability and vigilance from the auditor and

the Registrar in performance of their public duty. Moreover, a plain reading

of the said provision does not lead to the conclusion that the legislature

intends to debar any person other than the auditor or the Registrar from

registering an FIR. Section 81(5B) cannot be interpreted to mean that any

other person who comes to know about the financial irregularity on the basis

of the audit report is debarred from reporting the irregularity to the police. In

18 Union of India v. Popular Construction, (2001) 8 SCC 470 15 Crl.A. 2093/2023

the absence of any specific provision or necessary intendment, such an

inference will be against the interests of the society. The interests of the

society will be safeguarded if financial irregularities in co-operative banks

are reported to the police, who can subsequently take effective actions to

investigate crimes and protect the commercial interests of the members of

the society. In view of the above discussion, it is not possible for us to infer

that Section 81(5B) of the 1960 Act bars by necessary implication any

person other than an auditor or the Registrar from setting the criminal law

into motion.

27. From the narration of submissions before this Court, it appears that on 31

May 2021, the Minister in-charge of the Co-operative department has set

aside the audit report while directing a fresh audit report for 2016-2017 and

2017-2018. The order of the Minister has been called into question in

independent proceedings before the High Court. This Court has been

apprised of the fact that the proceedings are being heard before a Single

Judge of the High Court. The proceedings which have been instituted to

challenge the order of the Minister will have no bearing on whether the

investigation by the police on the FIR which has been filed by the appellant

should be allowed to proceed. The police have an independent power and

even duty under the CrPC to investigate into an offence once information

has been drawn to their attention indicating the commission of an offence.

This power is not curtailed by the provisions of 1960 Act. There is no

16 Crl.A. 2093/2023

express bar and the provisions of Section 81(5B) do not by necessary

implication exclude the investigative role of the police under the CrPC.

28. The High Court has relied on the decision of this Court in State of Haryana

v. Bhajan Lal19 to quash the FIR. In that case, this Court held that the High

Court can exercise its powers under Article 226 of the Constitution or

Section 482 of the CrPC to quash an FIR where there is an express legal

bar engrafted in any provisions of a special law with respect to the institution

and continuance of the proceedings. As held above, Section 81(5B) does

not contain any express or implied bar against any person from setting the

criminal law in motion.

29. In the circumstances, we are of the view that the High Court has erred in

quashing the FIR which was lodged by the appellant. It is correct that the

FIR adverted to the audit which was conducted in respect of the affairs of

the co-operative society. However, once the criminal law is set into motion, it

is the duty of the police to investigate into the alleged offence. This process

cannot be interdicted by relying upon the provisions of sub-section (5B)

which cast a duty on the auditor to lodge a first information report.

30. We accordingly allow the appeal and set aside the impugned judgment and

order of the High Court dated 16 November 2021 by which the FIR which

was lodged by the appellant, namely, FIR No 806 of 2019 dated 19 July

2019 has been quashed.

19 (1992) Supp (1) SCC 335 17 Crl.A. 2093/2023

31. We, however, clarify that the proceedings which have been instituted before

the Bombay High Court to challenge the order of the Minister shall not be

affected by the present order.

32. The appeal is allowed in the above terms.

33. The applications for intervention/impleadment are allowed.

34. Pending applications, if any, stand disposed of.

Special Leave Petition (Criminal) No 2246 of 2022

35. The Special Leave Petition is disposed of in terms of the order passed by

this Court in Dhanraj N Asawani vs Amarjeet Singh Mohindersingh Basi

and Others [Criminal Appeal No 2093 of 2023].

…...........…...….......………………....…..CJI.

[Dr Dhananjaya Y Chandrachud]

..…...........…...….......………………....…..J. [J B Pardiwala]

..………....…...….......………………....…..J. [Manoj Misra]

New Delhi;

July 25, 2023.

18

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