The State Of Chhattisgarh vs Aman Kumar Singh

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS………………………… OF 2023 (@SLP (CRL.) NOS.1703-1705 OF 2022)

THE STATE OF CHATTISGARH & ANR. … APPELLANTS

VS.

AMAN KUMAR SINGH & ORS. ETC. ETC. … RESPONDENTS

WITH

CRIMINAL APPEAL NOS………………………. OF 2023 (@SLP(CRL.) NOS.1769-1770 OF 2022)

UCHIT SHARMA … APPELLANT

VS.

THE STATE OF CHATTISGARH & ORS. ETC. ETC. … RESPONDENTS

JUDGMENT

DIPANKAR DATTA, J.

Leave granted.

2. These 5 (five) appeals are at the instance of, inter alia, the Signature Not Verified

State of Chhattisgarh (hereafter ‘the State’, for short) and Sri Uchit Digitally signed by NEETA SAPRA Date: 2023.03.01 18:08:39 IST Reason:

Sharma (hereafter ‘US’, for short). The appellants call in question a 2

common judgment and order dated 10th January, 2022 passed by

the Chhattisgarh High Court at Bilaspur, whereby 3 (three) writ

petitions [WPCR 88 of 2020, WPCR 154 of 2020 and WPCR 206 of

2020] were disposed of. WPCR 88 of 2020, presented by Sri Aman

Singh (hereafter ‘AS’, for short), was allowed by quashing FIR No.

9/2020 dated 25th February, 2020 (hereafter ‘the FIR”, for short)

under section 13(1)(b) and (2), Prevention of Corruption Act, 1988

(hereafter ‘P.C. Act”, for short) read with section 120B, Indian Penal

Code (hereafter ‘IPC”, for short), registered by the Economic

Offences Wing/Anti-Corruption Bureau of the State. WPCR 154 of

2020, instituted by the wife of AS, Smt. Yasmin Singh (hereafter

‘YS’, for short), was partly allowed. The spouses were the joint

petitioners in WPCR 206 of 2020, which was also allowed.

3. A complaint dated 11th October, 2019 was lodged by US in the

office of the Chief Minister of the State. It was alleged therein that

AS [an Indian Revenue Service (IRS) officer and the former Principal

Secretary to the erstwhile Chief Minister of Chhattisgarh], his wife

YS, [former consultant to the Govt. of Chhattisgarh, who had

worked on contract as the Director, Communication and Capacity

Development Unit (CCDU), Department of Public Health

Engineering, Govt. of Chhattisgarh from 14th November, 2005 to 31st

March, 2015, and as Director, ICE & Capacity Building, Dept. of 3

Panchayat & Rural Development, Govt. of Chhattisgarh from 1 st

April, 2015 to 10th December, 2018] and his family were involved in

corruption and money laundering, and that he also held assets

which are disproportionate to his known sources of income.

4. Upon the complaint being received, the Chief Minister by a

handwritten order directed the Chief Secretary of the State to have

the complaint enquired into by the Economic Offences Wing (EOW).

Although, the date “14th OCT, 2019” appears just above the

handwritten order of the Chief Minister, it is not too clear whether

he made such order on 14 th October, 2019 or on 15th October,

2019.

5. Be that as it may, vide a forwarding letter dated 21st

October, 2019, the complaint was forwarded by the General

Administration Department of the State (hereafter ‘GAD’, for short)

to the Economic Offences Wing/Anti-Corruption Bureau

(hereafter ‘ACB/ EOW', for short) for the purpose of conducting

inquiry into the allegations leveled therein. Acting in furtherance of

the said letter dated 21st October, 2019, the ACB/EOW registered a

preliminary inquiry bearing no. P.E.35/2019.

6. Prior to these developments, YS had invoked the writ

jurisdiction of the High Court by instituting a writ petition [W.P.

(S)6521/2019], essentially questioning a departmental inquiry 4

initiated against her. She had prayed for quashing and/or setting

aside of an order dated 10th May, 2019 whereby the GAD had

instituted an inquiry against her. Such inquiry appears to have been

initiated on the basis of a complaint dated 12th April, 2019 lodged by

one Vikas Tiwari (spokesperson of the Chhattisgarh unit of the

Indian National Congress party). With the initiation of P.E.35/2019,

in terms of the letter dated 21st October, 2019, YS filed an interim

application (I.A.04/2020) seeking a stay thereof. By an order dated

16th January, 2020, the High Court directed the State not to take

any steps to her prejudice pursuant to the letter dated 21 st

October, 2019. The order of 16th January, 2020 refers to, inter

alia, an earlier order dated 21st October, 2019 which, however, is

not on record.

7. The letter dated 21st October, 2019 of the GAD, referred to

above, was also challenged by AS by instituting a writ petition

[WPCR 88/2020] before the High Court on 29 th January, 2020. In

such writ petition, AS urged the court to pass an order for

production of the entire records pertaining to the letter dated 21 st

October, 2019 for its perusal, for quashing the said letter as well as

any consequential step/action taken by the State including

P.E.No.35/2019.

5

8. During the pendency of WPCR 88/2020, the FIR was

registered against AS and YS.

9. Within a few days of registration of the FIR, on 28 th February,

2020 to be precise, AS applied for an amendment of WPCR 88/2020

seeking to mount a challenge to the FIR. He had also applied for

interim relief for stay of effect/operation of the FIR.

10. YS too, on 2nd March, 2020, instituted WPCR 154/2020 seeking

an order, inter alia, for quashing of the FIR.

11. By an order dated 28th February, 2020, the High Court allowed

the application for amendment and also directed that no coercive

steps be taken against AS till the next date of hearing.

12. On 15th April, 2020, WPCR 206/2020 was jointly instituted by

AS and YS seeking appropriate order for listing of WPCR

88/2020 and WPCR 154/2020 for final hearing immediately upon

resumption of normal functioning of the Court (which was then

curtailed due to the pandemic caused by Covid-19) and also for an

order declaring the action of the ACB/EOW in directing HDFC Bank

Ltd., respondent no.5, to put a hold on the funds in the salary

account of AS, as void and illegal.

13. We need not at this stage refer in detail to the intervening

events of issuance of notice to AS to join the investigation as well as

interim orders passed on the writ petitions from time to time. 6

Suffice it to note, in an order dated 6 th September, 2021, the High

Court observed that there was a dispute with regard to the income

of AS and YS and the ACB/EOW was called upon to produce the case

diary as well as figures in tabulated form showing income and

expenditure for perusal by the Court whether there is

disproportionate income or not.

14. Faced with such an order, the State filed an application

seeking exemption to produce the case diary and the figures in

tabulated form as well as applied for vacation of an earlier order

dated 28th February, 2020 whereby the ACB/EOW was restrained

from taking coercive steps against AS. The fate of these applications

does not clearly appear from the records. However, for the reasons

recorded in the impugned judgment and order dated 10th

January, 2022, the High Court while allowing WPCR 88/2020

quashed the FIR. In view of the FIR having been quashed, the High

Court held that relief sought by YS in WPCR 154/ 2020 in relation to

the FIR had lost its significance. However, the Court rejected the

prayer of YS to prosecute US, the original complainant and J.P.

Kujur, the Investigation Officer, under section 211, IPC. WPCR

154/2020, thus, stood partly allowed. Insofar as WPCR 206/2020 is

concerned, the Court made the following directions in paragraph 70:

“70. Since this Court while hearing WPCR No. 88 of 2020 has already quashed the FIR bearing No. 09/2020 registered 7

against the petitioners at Police Station- EOW/ACB, District- Raipur (C.G.), therefore, the relief sought in this petition has lost its significance and the bank account No. 50100 28338 9868 of petitioner No. 1 shall inoperative (sic) after quashing the FIR in WPCR No. 88 of 2020, therefore, no further direction is required to be passed.”

15. Since, the High Court has quashed the FIR and we are called

upon to examine the legality and propriety of the impugned

judgment, we propose to refer to the material portions of the FIR

after noting the rival contentions.

16. Mr. Sibal, learned senior counsel appearing in support of the

appeals preferred by the State, contended that the High Court

committed gross error of law in quashing the FIR by transgressing

the legal bounds for quashing a first information report. Placing

reliance on the decision of this Court in CBI & Ors. Vs. Tapan

Kumar Singh1, he contended that a first information report is not

an encyclopedia which must disclose all facts and details relating to

the offence reported; what is of significance is that the information

given must disclose the commission of a cognizable offence and the

information so lodged must provide the basis for the police to

suspect the commission of a cognizable offence. At the stage of

registration of a first information report, the police officer on the

basis of the information given has to suspect the commission of a

cognizable offence and not that he must be convinced or satisfied 1 (2003) 6 SCC 175 8

that a cognizable offence has been committed. If he has reasons to

suspect on the basis of the information received that a cognizable

offence may have been committed, he is bound to record the

information and investigate, without it being necessary for him to

satisfy himself about the truthfulness of the information.

17. According to Mr. Sibal, when a first information report could be

lodged on the basis of suspicion, the High Court in the present case

erred in law in quashing the FIR on the ground that it was based on

“probabilities”. Criticizing the impugned judgment as wanting in

appreciation of the aforesaid basic principle, he urged that the High

Court overstepped its limits.

18. Mr. Sibal also contended that in the present case, AS

challenged the FIR a few days after the same was registered on 25 th

February, 2020 and obtained an order from the High Court to the

effect that no coercive steps be taken against him. Armed with such

an order, AS did not join the investigation despite a notice having

been issued. There was no order staying the investigation. Even if

the investigation had proceeded, there was no imminent fear of

arrest. If indeed, AS and YS do have papers and documents to

satisfactorily account for the pecuniary resources and property and

that they do not possess assets disproportionate to their known

sources of income, such papers and documents could have been 9

produced before the Investigating Officer thereby enabling him to

hold that there is no substance in the complaint lodged by US, and

then to file an appropriate closure report before the concerned court

to be considered in accordance with Law. However, the

Investigating Officer could not proceed with the investigation

effectively and meaningfully in view of the restraining orders passed

by the High Court resulting in the investigative process being

aborted.

19. Our attention was next invited by Mr. Sibal to the decisions of

this Court in State of Uttar Pradesh Vs. Naresh & Ors.2 and

Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra &

Ors.3, in support of the contention that when an investigation by

the police is in progress, the courts should not go into the merits of

the allegations in the FIR; on the contrary, the police must be

permitted to complete the investigation. It was also contended that

if after investigation the Investigating Officer does not find any

substance in the complaint/first information report, he is obliged to

file appropriate closure report before the concerned court for its due

consideration in accordance with law; however, it would be

premature to pronounce any conclusion that the first information

report does not disclose any cognizable offence based on hazy facts.

2 (2011) 4 SCC 324

3 2021 SCC OnLine SC 315 10

20. Mr. Sibal, thus, prayed that the impugned judgment and order

of the High Court be set aside and investigation into the FIR be

permitted to be taken to its logical conclusion.

21. Mr. Sanjay Hegde, learned senior counsel for the other

appellant, i.e., US, contended that the High Court clearly applied a

wrong test while quashing the FIR. According to him, the test of a

prima-facie or probable case is only required to be shown at the

time of framing of charge; however, for an investigation to proceed

on the basis of a first information report, all that is required to be

shown is that the contents of the complaint/first information report,

when taken at face value, make out an offence.

22. It was further contended by Mr. Hegde that the High Court

conducted a mini-trial while arriving at a conclusion that no offence

against AS and YS has been made out in the FIR which, this Court

has repeatedly held, cannot be conducted in proceedings for

quashing of a first information report. At the stage of considering a

prayer for quashing of first information report, the probable defence

of the accused cannot be considered.

23. Inviting our attention to the interim order dated 6 th September,

2021 passed by the High Court, Mr. Hegde contended that such an

exercise could not have been undertaken by the Court in exercise of

its jurisdiction under Article 226 of the Constitution. 11

24. Referring to the decision of this Court in Central Bureau of

Investigation & Anr. Vs. Thommandru Hannah Vijayalakshmi

@ T.H. Vijayalakshmi & Anr.4, Mr. Hegde submitted that a similar

exercise that was undertaken by the relevant high court was held to

be impermissible by this Court.

25. The decisions of this Court in R.P. Kapur Vs. State of Punjab5

and State of Haryana Vs. Bhajan Lal and Ors. 6 were next cited

for highlighting the categories of cases where inherent jurisdiction

can and should be exercised by the high courts to quash

proceedings; however, having regard to the facts and circumstances

of the case presented before the High Court by AS and YS, Mr.

Hegde contended that the court ought to have declined interference.

26. Mr. Hegde further relied on the decision of this Court in

Rajesh Bajaj Vs. State (NCT of Delhi)]7 for the proposition that

if the factual foundation for the offence has been laid in the

complaint, the court should not hasten to quash criminal

proceedings during investigation stage merely on the premise that

one or two ingredients have not been stated with details. According

to him, quashing of a first information report is a step which is

4 (2021) SCC OnLine SC 923

5 (1960) 3 SCR 388

6 1992 SUPP. (1) SCC 335

7 (1999) 3 SCC 259 12

permitted only in extremely rare cases such as, the information in

the complaint must be so bereft of even the basic facts which are

absolutely necessary for making out the offence. The FIR, in the

present case, does contain definite particulars making out the

offences complained of. That apart, the preliminary inquiry carried

out before registration of the FIR has revealed disproportionate

assets to the tune of 20% of the income of AS; hence, it was not an

appropriate case where the power to quash the FIR should have

been exercised.

27. While concluding, Mr. Hegde submitted that the High Court

having travelled beyond the well-settled parameters of exercise of

jurisdiction under Article 226 of the Constitution, the impugned

judgment and order merits to be set aside.

28. Mr. Mahesh Jethmalani, learned senior counsel appearing for

AS and YS, opposed the appeals. Reiterating the contentions that

found favour with the High Court, he contended that the High Court

rightly concluded that investigation of the FIR, which did not prima

facie disclose commission of any cognizable offence by either AS or

YS, would be nothing but an abuse of the process of law and

compelling AS and YS to join the investigation would amount to

undue and unnecessary harassment.

13

29. By referring to the facts preceding registration of the FIR, Mr.

Jethmalani sought to impress us that ever since the political

dispensation underwent a change in the State of Chhattisgarh, AS

and YS have been the target of the new dispensation. Misusing the

police machinery, no stone has been left unturned to falsely

implicate AS and YS. Initially a departmental inquiry was initiated

against YS vide an order dated 10th May, 2019 and no sooner had

the High Court by an order dated 21 st October, 2019 granted interim

protection to YS, further action was taken to initiate a preliminary

inquiry against AS and YS on 11 th November, 2009. That apart,

quite mischievously, the FIR was suddenly registered during the

pendency of WPCR 88/2020 to render the same infructuous.

30. It was thereafter contended by Mr. Jethmalani that a bare

perusal of the FIR would reveal non-disclosure of the ‘check period’

which is a sine qua non in a case of disproportionate assets.

Further, the FIR did not disclose the basic ingredients of establishing

an offence under section 13(1)(b) read with section 13(2) of the

P.C. Act. The FIR also did not disclose the extent of alleged

investment either in figures or in percentage.

31. Referring to the decision in T.H. Vijayalakshmi (supra), it

was Mr. Jethmalani’s endeavor to show that the investigating

agency in that case had set out/specified the extent of 14

disproportionality in a tabular form, in rupees and percentage, in

the first information report therein. The High Court, therefore, was

not in error when it required the State to produce the case diary as

well as figures in tabulated form showing income and expenditure

for perusal by the Court by its interim order dated 6 th September,

2021.

32. Mr. Jethmalani further urged that no material being there to

justify registration of the FIR is borne out from the fact that the

State had applied for exemption from complying with the High

Court’s order dated 6th September, 2021.

33. It was next argued by Mr. Jethmalani that a first information

report based on sheer conjectural possibility of finding some more

assets in future is wholly impermissible. Law, according to him, is

well settled that a mere mention of the possibility will not entitle the

ACB/EOW of the State to lodge a first information report and

conduct investigation. Unless the first information report discloses

cognizable offence, such report based on possibilities would become

a tool of witch hunting and consequently harassment, which would

be a clear violation of Article 21 of the Constitution. It was also

argued that there is a casual allegation of a criminal conspiracy

between AS and YS without there being a whisper about its basic

elements.

15

34. Mr. Jethmalani further contended that even if it is assumed

that 2004 to 2018 is the check period, it is clear that a fishing

inquiry is intended by the State and its officers with a view to

scandalize AS and YS.

35. It was also the contention of Mr. Jethmalani that there has

been no disproportionality at all, which would warrant an

investigation even into the allegations leveled by US in the

complaint, or for that matter, the FIR, and the High Court was right

in its interference to prevent abuse of the process of law.

36. The contention of the respondents that the High Court had

applied a ‘non-existent legal test’ was refuted by terming it as

entirely misleading. Passages from the impugned judgment were

referred to, to show how the High Court was right in returning the

finding that the FIR did not disclose any offence rendering it liable to

interdiction.

37. While concluding, Mr. Jethmalani contended that there was no

material to justify registration of the FIR and that there being no

‘legitimate prosecution’, the same has rightly been quashed and set

aside by the impugned judgment; hence, the appeals are liable to

be dismissed.

38. The High Court did not in the impugned judgment assign mala

fide as a ground for quashing the FIR. In course of hearing before 16

us, Mr. Jethmalani attempted to build up a case of mala fide by

referring to how the incumbent Chief Minister perceived AS to be a

‘super CM’ and also that AS has become the victim of political

vendetta, being caught in the crossfire between the incumbent Chief

Minister and the former Chief Minister. Reference was made to

clause (7) of paragraph 102 of the decision in Bhajan Lal (supra),

where it was held that a first information report could be quashed

by the high courts “where a criminal proceeding is manifestly

attended 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”.

39. In his rejoinder, Mr. Hegde canvassed that there are no

pleadings to this effect in the writ petition filed before the High

Court and, therefore, a new case ought not to be allowed to be set

up de hors the pleadings. The immediate reaction of Mr. Jethmalani

was that the writ petitions are replete with allegations of mala fide,

which form the plinth for registration of the FIR as well as the

departmental inquiry against YS.

40. Before reserving judgment, we had permitted Mr. Jethmalani

to file short written notes of arguments within a week together with 17

a few other relevant documents which he intended to file though not

part of the pleadings before the High Court or this Court.

41. The written notes together with documents annexed thereto

marked as annexures R/1A to R/1K have been considered.

42. In Part 1 of the written notes, reference has been made to

Circular No. 29/2020 of the Central Bureau of Investigation

(hereafter ‘CBI’, for short) providing the methodology for registering

first information reports in cases of disproportionate assets and for

conducting investigation. The contention advanced is that the FIR,

in the present case, does not conform to the guidelines laid down by

the CBI in Circular No. 29/2020 (hereafter ‘CBI Circular’, for short).

Part II centers around the contention that the FIR contains several

statements styled as facts, which were false to the knowledge of the

ACB/EOW of the State. The third and final part is dedicated to

“fabrications and manipulations” in the FIR which were the result of

political vendetta against AS, who was the Principal Secretary to the

Chief Minister in the previous regime.

43. We ought to place on record that little over a week of

reserving judgment, on 20th January, 2023 to be precise, Mr. Vikas

Singh, learned senior counsel mentioned the criminal appeals and

prayed for recall of the order reserving judgment on the ground that

an application for directions was in the process of being filed by AS 18

and YS and that the same ought to be considered before the

judgment on these appeals is pronounced. Orally, we permitted the

application to be filed for being taken into consideration at an

appropriate time.

44. The application, which has since been filed on 20 th January,

2023, refers to certain newspaper reports and WhatsApp

messages/chats exchanged allegedly between important

functionaries of the Government of Chhattisgarh and based thereon

it has been the contention that there exists conclusive material in

public domain establishing that the FIR against AS and YS has been

registered at the behest of one Sri Anil Tuteja and other high-

ranking public officials in the State, at the instance of the present

Chief Minister. Since the materials brought on record by such

application are sufficient to drive home the conclusion that political

vendetta is the real cause for registration of the FIR, to tarnish the

reputation of AS and YS, it has been urged that all the evidence

ought to be summoned by this Court for just disposal of the present

proceedings. Such application contains the following prayers:

“PRAYER

In the facts and circumstances stated hereinabove, this Hon'ble Court may graciously be pleased to:

a) Direct to take on record the new facts and materials, as has emerged from the news report dated 18.01.2023 (titled "The Chhattisgarh Files: Docs, Chats show how 19

prime accused was himself 'managing' NAN scam investigation, Baghel issued hitlist' to implicate Raman Singh, others’) in the web news portal www.opindia.com and direct further hearing in the present case; and/or

b) Direct to summon the records pertaining to the ‘WhatsApp' Chats relating to the conspiracy to implicate the Respondent Nos. 1 & 4 from the Enforcement Directorate; and/or

c) Direct to summon the records of the Preliminary Enquiry bearing No. 35 of 2019 initiated by the Petitioner-

State's EOW/ACB in respect to the complaint made by Respondent No. 2 on 11.10.2019; and/or

d) Direct to tag the present special leave petition with W.P. (Crl) No. 506 of 2021 titled 'Directorate of Enforcement v. Anil Tuteja & Ors.’ Pending before this Hon’ble Court; and/or

e) Pass such other or further order (s) as may be deemed fit and appropriate by this Hon’ble Court in the facts and circumstances of the present case.”

45. We have heard the parties, perused the materials on record,

and considered the decisions cited at the bar.

46. The High Court, upon perusal of the FIR and consideration of

the arguments advanced by the parties as well as the decisions

cited at the Bar, recorded in the impugned judgment, inter alia, as

follows: -

“49. From bare perusal of the FIR, the allegation of disproportionate income is made out or not, it is expedient for this Court to examine whether from bare perusal of the contents of FIR, offence said to have been committed is made out or not, then only the FIR can be quashed by this Court. Therefore, whether the prima facie case is made out or not, has to be seen. This Court in foregoing paragraphs has extensively quoted the FIR, 20

which clearly demonstrates that the FIR is based on probabilities with regard to disproportionate income. The FIR is silent with regard to quantum of the disproportionate income, which is the paramount factors for involving any person in implicating any person for commission of offence under Section 13(1)(b), 13(2) of the Act, 1988. These basic ingredients are not reflected from the bare perusal of the FIR.

***

56. The FIR further states that there is possibility of having various properties in the name of the petitioner and his wife. The FIR further states that there is reasonable possibility that the petitioner has invested himself for his wife and other dependent family members and it was also stated that there is a possibility that a huge amount of money is being deposited in the bank account of his wife. The FIR nowhere discloses commission of any offence with definite facts and figures.

The FIR is based upon probabilities. As per the Act, 1988, it is for the prosecution to establish prima facie offence under Section 13(1)(b) read with Section 13 (2) of the Act, 1988 against Government servant by reflecting in the FIR, which is initiation of prosecution, then only, prosecution can be started to investigate the offence as mentioned in the FIR. In absence of any specific allegation made in the FIR, merely on probability, the petitioner cannot be prosecuted. The FIR has been registered on the basis of complaint made by one Uchit Sharma. The allegation in the FIR that the petitioner has not filed a single APR while being employed with the Government of Chhattisgarh due to fear that his disproportionate assets will get exposed. It may seriously violate all the conduct rules of Government of India and Chhattisgarh Civil Services (Conduct) Rules, 1965, but the petitioner cannot be prosecuted for commission of offence under Section 13(1)(b) read with Section 13(2) of the Act, 1988 for non-submission of APR with the department. The FIR is not disclosing the fact that even not disclosing the APR with the Government what disproportionate income, the petitioner has earned during the period from 2004 to 2018.”

47. Confined to what the High Court has held in the impugned

judgment and order, the short question that emerges for a decision 21

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).

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 22

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 23

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.

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 24

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 25

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.

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.8, inter alia, while

8 (2014) 2 SCC 1 26

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.

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 27

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.

53. It is in the light of section 13 of the P.C. Act and the above

principles that we need to read the FIR and the preceding complaint 28

to assess whether any cognizable offence is made out against AS

and, a fortiori, against YS, his wife.

54. The complaint that US lodged with the Chief Minister does

specifically allege that although AS came from a very humble

background, as evident from his Annual Property Return filed at the

time of joining IRS, “he has managed to amass disproportionate

assets of more than 2500 crores contrary to his legal sources of

income”. One could view it as a tall claim, which is thoroughly

unsubstantiated. However, it cannot be wished away because of the

revelations of the preliminary inquiry which led to registration of the

FIR and have formed part thereof. Although it is true that it is for

the prosecution to build up a case that AS, as a public servant,

amassed such wealth or even wealth of any lesser value that is

disproportionate to his known sources of income, and which could

not satisfactorily be accounted for by him, while it files the police

report, it does not seem to be a requirement of law when the FIR

was registered on 25th February, 2020 that facts and figures with

exactitude need to form part of a first information report.

55. Moving forward, it is found on perusal of the FIR that although

not specifically mentioned, 2004 to 2018 is the “check period”

during which AS and YS have acquired property disproportionate to

their known sources of income. There are certain calculations 29

projecting the quantum of money that both AS and YS received

towards salaries, interest and value for properties sold. Particulars

of immovable properties acquired by AS and YS at different

locations with particulars of “price” also find mention therein. It is

thereafter stated that in addition to these properties, there is

possibility of there being other properties in other places of the

country in the names of AS and YS. There are also references to

possible investments made by AS abroad, either in his own name or

in the names of his wife and dependent members. Deposits of

money in lakhs in the bank account of YS regularly have been

suspected to be receipt of consideration (profit) from investment of

big amounts. It is also revealed from the FIR that

Rs.1,01,83,869.00 during April, 2013 to July, 2016 and

Rs.75,55,058.00 during October, 2018 to November, 2019 were

deposited by Cargill India Pvt. Ltd. and Courtesan Consulting Private

Limited, respectively, in the bank account of YS and such financial

transactions involving huge amounts prima facie appeared to be

conspicuous requiring minute scrutiny. These, along with some

other disclosures relating to involvement of AS as promoter of a

‘memorial foundation’ and YS as partner of a firm, reveals the

following contents:

“***As per the information regarding properties exceeding income, received in the inquiry, commission of a cognizable 30

offence appears prima facie. Keeping it in view, investigation is required so that information may be obtained regarding movable and immovable properties in addition to the aforesaid properties. There is possibility that information regarding not only shares, vehicles and jewelry but also regarding Benami properties in the name of relatives, may be obtained. The income received lawfully by non-applicant Aman Singh and Yasmin Singh during their tenure as public servant, from year 2014 to December, 2018, was found to be Rs. 3,33,71,290, in comparison to which, it was found that immensely disproportionate expenses have been made by non-applicant Aman Singh during the said period in his name and in the name of his wife and dependent members, which was prima facie found to be an offence under Sections 13(1)B, 13(2) of the Prevention of Corruption Act, 1988 as amended by Amendment Act, 2018 and Section 120(B) of the Indian Penal Code.”

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 31

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.

57. Based on our reading of the FIR, we are unable to appreciate

the reasons resting whereon the same has been quashed by the

High Court. The High Court was of the opinion that (i) the FIR

clearly demonstrates that the same “is based on probabilities with

regard to disproportionate income”, (ii) the FIR “is silent with regard

to the quantum of disproportionate income, which is the paramount

factors for involving any person in implicating any person for

commission of offence under Section 13(1)(b), 13(2) of the Act,

1988”, (iii) these “basic ingredients are not reflected from the bare

perusal of the FIR”, (iv) the “FIR nowhere discloses commission of

any offence with definite facts and figures” and (v) “offence under

Section 13(1)(b), 13(2) of the Act, 1988 is not made out”.

58. While deciding the challenge to the FIR, the High Court –

unwittingly, we presume – did not bear in mind the note of caution

in Bhajan Lal (supra) to the effect that the power of quashing a

criminal proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases; further that,

the court will not be justified in embarking upon an enquiry as to 32

the reliability or genuineness or otherwise of the allegations made in

the FIR or the complaint; and also that, the extraordinary or

inherent powers do not confer an arbitrary jurisdiction on the court

to act according to its whim or caprice.

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 Kalpatri9.

60. Very strong reliance has been placed by Mr. Sibal on the

decision in Tapan Kumar Singh (supra). There, this Court ruled

that:

“20. *** The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer

9 (1996) 1 SCC 542 33

concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can.”

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, 34

unhesitatingly of the view that the High Court was not justified in its

interference on the ground it did.

62. Mr. Hegde is also right in relying on the decisions in R.P.

Kapur (supra) and Bhajan Lal (supra) that the FIR in this case did

not fit into any of the categories for being quashed on the ground of

not disclosing a cognizable offence.

63. Borrowing the words of K.T. Thomas, J. (as His Lordship then

was), it can safely be concluded that in the present case the High

Court “sieved the complaint through a cullender of finest gauzes for

testing” the veracity of the alleged crime. This approach being

clearly impermissible at the stage of considering a challenge to a

first information report, we are of the considered opinion that the

judgment and order under challenge is indefensible.

64. We now move on to consider Circular No. 29/2020 dated 12 th

November, 2020 issued by the CBI on the subject of investigation of

cases of Illicit Enrichment (possession of pecuniary resources or

property disproportionate to known sources of income) (hereafter

‘CBI Circular’, for short). Having perused the CBI Circular, what we

find is that the same provides the methodology to guide registration

of a first information report in relation to disproportionate assets

cases. To the written notes of arguments is annexed a circular dated

12th April, 2021, by which the State has clarified that the CBI’s 35

methodology would apply to the State’s ACB/EOW as well (because

the manual of the State’s ACB/EOW has not been notified) and also

that the CBI’s methodology will apply in respect of All India and

Central Govt. Service Officers. However, the contention on behalf of

AS and YS that the methodology provided in the CBI Circular has

been observed in the breach has failed to impress us. Evidently, the

FIR in the present case was registered on 25 th February, 2020

whereas the CBI Circular was issued on 12 th November, 2020,

almost 9 (nine) months after the FIR was registered, and adopted

by the State almost a year later. Since the CBI Circular was not in

existence on 25th February, 2020, the FIR in the present case cannot

be invalidated by reference to the CBI Circular. It is only just and

appropriate that the CBI Circular, having been adopted by the State,

would be required to be followed only in respect of registration of

first information reports pertaining to cases of acquisition of

disproportionate assets, post 12th April, 2021. We, therefore, see no

reason to invalidate the FIR for alleged breach of the CBI Circular.

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.

36

66. To answer the second question, the challenge to the FIR on

the ground that it is vitiated by mala fides is taken up for

consideration.

67. Allegations of ulterior motives at the behest of the political

dispensation in power in the State and direction given by the Chief

Minister to the Economic Offences Wing to conduct an inquiry, which

is per se violative of the law, are found in WPCR 88 of 2020 under

the heading ‘subject matter in brief’. Mirror images of such

allegations are also found under the heading ‘Facts of the Case’.

While amending the writ petition and challenging the FIR and

seeking an order for its quashing, AS alleged in the application for

amendment as follows:

“That the action taken by the Chief Minister on the complaint addressed to him is patently contrary to law and in view of the said CM’s declared public hostility towards the petitioner as set out elsewhere in the petition, discloses malice” (paragraph 9.29). “The lodging of the FIR during pendency of the hearing of the present writ petition is further evidence of mala fides on part of Respondent State” (paragraph 9.32). “That the FIR is an abuse of police and state power. It is the outcome of personal animosity of the CM of the state against the petitioner” (paragraph 9.33).

68. Mr. Jethmalani, experienced as he is, must have sensed that

the judgment under challenge rests on weak foundation; hence, he

advanced arguments more touching upon the mala fides that 37

worked in registration of the FIR against AS and YS. As has been

noted above, reacting to Mr. Hegde’s submission that there are no

pleadings of mala fides, he submitted that the writ petitions are

replete with such pleadings.

69. As if the submissions of Mr. Jethmalani were not strong

enough, we had AS and YS filing the application for directions late in

the day seeking to bring on record certain reports/messages/chats

to provide proof that mala fide motive is indeed the genesis of the

FIR. We have also perused the application for directions, and more

particularly the contents of paragraph 13 thereof.

70. For reasons more than one, we are inclined to the view that

the writ petitions before the High Court would not have succeeded

even if the plea of mala fide were advanced and accepted as a

ground of assail to the FIR, based on what has been laid down in Bhajan Lal (supra).

71. We have perused the writ petitions filed by AS and YS and

have no hesitation to agree with Mr. Hegde that the pleadings are

insufficient to return a finding that the FIR is an outcome of mala

fide. No doubt, certain allegations are levelled against the

Government and the Chief Minister; however, such allegations are

vague and general in nature. Mala fide motives are required to be

affirmatively pleaded and proved. However, no foundation in that 38

behalf has been laid and naturally so, the High Court even did not

examine whether exception could have been taken to the FIR on the

ground of mala fide.

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 10 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.

73. Thirdly, it must be remembered that when an information is

lodged at the police station and an offence is registered in respect of

a disproportionate assets case, it is the material collected during the

investigation and evidence led in court that is decisive for

determining the fate of the accused. To our mind, whether the first

information report is the outcome of mala fide would be of

10 1992 Supp. (1) SCC 222 39

secondary importance. In such a case, should the allegations of

mala fide be of some prima facie worth, would pale into

insignificance if sufficient materials are gathered for sending the

accused up for a trial; hence, the plea of mala fide may not per se

form the basis for quashing the first information report/complaint.

74. Finally, following the above, what is of substantial importance

is that if criminal prosecution is based upon adequate evidence and

the same is otherwise justifiable, it does not become vitiated on

account of significant political overtones and mala fide motives. We

can say without fear of contradiction, it is not in all cases in our

country that an individual, who is accused of acts of

omission/commission punishable under the P.C. Act but has the

blessings of the ruling dispensation, is booked by the police and

made to face prosecution. If, indeed, in such a case (where a

prosecution should have been but has not been launched) the

succeeding political dispensation initiates steps for launching

prosecution against such an accused but he/she is allowed to go

scot-free, despite there being materials against him/her, merely on

the ground that the action initiated by the current regime is mala

fide in the sense that it is either to settle scores with the earlier

regime or to wreak vengeance against the individual, in such an

eventuality we are constrained to observe that it is criminal justice 40

that would be the casualty. This is because, it is difficult to form an

opinion conclusively at the stage of reading a first information report

that the public servant is either in or not in possession of property

disproportionate to the known sources of his/her income. It would

all depend on what is ultimately unearthed after the investigation is

complete. Needless to observe, the first information report in a

disproportionate assets case must, as of necessity, prima facie,

contain ingredients for the perception that there is fair enough

reason to suspect commission of a cognizable offence relating to

“criminal misconduct” punishable under the P.C. Act and to embark

upon an investigation. Having regard to what we have observed

above in paragraph 49 (supra) and to maintain probity in the

system of governance as well as to ensure that societal pollutants

are weeded out at the earliest, it would be eminently desirable if the

high courts maintain a hands-off approach and not quash a first

information report pertaining to “corruption” cases, specially at the

stage of investigation, even though certain elements of strong-arm

tactics of the ruling dispensation might be discernible. The

considerations that could apply to quashing of first information

reports pertaining to offences punishable under general penal

statutes ex proprio vigore may not be applicable to a P.C. Act

offence. Majorly, the proper course for the high courts to follow, in 41

cases under the P.C. Act, would be to permit the investigation to be

taken to its logical conclusion and leave the aggrieved party to

pursue the remedy made available by law at an appropriate stage.

If at all interference in any case is considered necessary, the same

should rest on the very special features of the case. Although what

would constitute the special features has necessarily to depend on

the peculiar facts of each case, interference could be made in

exceptional cases where the records reveal absolutely no material to

support even a reasonable suspicion of a public servant having

intentionally enriched himself illicitly during the period of his service

and nothing other than mala fide is the basis for subjecting such

servant to an investigation. We quite appreciate that there could be

cases of innocent public servants being entangled in investigations

arising out of motivated complaints and the consequent mental

agony, emotional pain and social stigma that they would have to

encounter in the process, but this small price has to be paid if there

is to be a society governed by the rule of law. While we do not

intend to fetter the high courts from intervening in appropriate

cases, it is only just and proper to remind the courts to be careful,

circumspect and cautious in quashing first information reports

resting on mala fide of the nature alleged herein. 42

75. For the foregoing reasons, we have no option but to hold that

there are no cogent grounds for quashing the FIR in the present

case even on the ground of mala fide.

76. Consequently, we set aside the impugned judgment and order

and direct dismissal of the writ petitions. The appeals are,

accordingly, allowed.

77. Interim protection granted earlier shall continue for a period of

three weeks, within which AS and YS may pursue their remedies in

accordance with law.

78. Parties shall bear their own costs.

79. It is, however, clarified that the observations made herein are

merely for the purpose of disposal of these appeals. Proceedings

hereafter shall be taken to its logical conclusion strictly in

accordance with law.

……………………………………….J (S. RAVINDRA BHAT)

NEW DELHI; ………………………………………J 1st MARCH, 2023. (DIPANKAR DATTA)