[Prevention of Corruption Act] Supreme Court says merely because offence of conspiracy is involved, investigation into cognizable offence under the Act not required to await a sanction from Magistrate

The Supreme Court on Friday clarified that merely because the offence of conspiracy may be involved in a case, the investigation into the substantive offence, i.e., in the present case which was an offence under the Prevention of Corruption Act which is cognizable is not required to await a sanction from the Magistrate.

It was further added that such sanction was unwarranted as it would lead to a considerable delay and affect the investigation and would also derail the investigation.

With this view, a bench of Justices MR Shah and AS Bopanna pulled up the Jammu and Kashmir High Court saying that it erred in quashing the criminal proceedings against the Director Health Services, Kashmir and others on the ground that as the offence under Section 120B which is a non-cognizable one, prior sanction as required under Section 155 of J&K Cr.P.C. was not obtained.

An appeal was preferred by the state of Jammu and Kashmir against the judgment passed by the High Court of Jammu & Kashmir at Srinagar by which it in exercise of its extra-ordinary jurisdiction had quashed the criminal proceedings filed against the Director Health Services, Kashmir along with the other accused persons who had misappropriated huge amount of government money by way of effecting purchases of sub-standard medical kits under National Rural Health Mission (NRHM) at highly exorbitant rates and in violation of the conditions of supply orders placed by the department.

An FIR was registered against the accused persons under Section 5(1)(d) r/w 5(2) of the J&K Prevention of Corruption Act, 2006 and Section 120B of the Ranbir Penal Code.

While quashing the proceedings, the High Court had further declared Rule 3.16 of the Vigilance Manual, 2008 dealing with the Preliminary Enquiry (PE) being in direct conflict with the Constitution Bench Judgment of the Supreme Court in the case of Lalita Kumari v. Government of Uttar Pradesh.

The High Court while relying on the Supreme Court decision in Bhajan Lal had also quashed the Entrustment Order passed by the Senior Superintendent of Police, VOK, Srinagar authorising the Inspector to investigate the offences, which authorisation was in exercise of powers under the second proviso to Section 3.

It was found that, what was considered by the Supreme Court in the case of Bhajan Lal was Section 5A of the 1947 Act and the wordings used in Section 3 of the J&K PC Act, 2006 were altogether distinct and different from that of Section 5A of the Prevention of Corruption Act, 1988 which fell for consideration in the case of Bhajan Lal.

Noting that there was no non-application of mind on the part of the Senior Superintendent of Police authorising the enquiry into the FIR, the bench found that such authorisation could not be said to be vitiated and/or can be said to be void which warrants quashing of the entire criminal proceedings including the FIR.

The Court further held that Rule 3.16 dealing with Preliminary Enquiry was also in consonance with the observations and the law laid down by it in the case of Lalita Kumari.

A close reading of Rule 3.16, showed that the same was in the interest of the and to safeguard the accused against frivolous complaints.

“As per Clause 3.16 only after the Preliminary Enquiry is conducted and there is a prima facie case found, an FIR is required to be registered. Considering the nature of offences, a detailed enquiry is required and therefore it is observed in Clause 3.16 that a PE should be completed normally within a period of six months”, remarked the Bench.

Noting that the accused as well as the High Court were of the view that a detailed investigation into the allegations on merits was not required by holding a Preliminary Enquiry and that such enquiry is to be completed within a period of 7 days, the Court clarified that Lalita Kumari, did not hold that if the Preliminary Enquiry is not completed within a period of 7 days, the entire criminal proceedings would be void and the same are to be quashed.

"There shall not be any prejudice caused to the accused at the stage of holding Preliminary Enquiry which as observed hereinabove shall only be for the purpose of satisfying whether any prima facie case is made out with respect to the allegations made in the complaint which requires further investigation after registering the FIR or not. Therefore, the High Court has materially erred in holding and declaring Clause 3.16 as ultra vires."

With this view, the appeal was allowed and the FIR/criminal proceedings against the respondent-accused were ordered to be investigated and proceeded further by the authorised officer expeditiously.

Cause Title: The State of Jammu & Kashmir and others v Dr. Saleem Ur Rehman