An Open Inquiry At Pre Registration Of FIR Stage In Case Of Allegation Against Corrupt Practice Is Not Illegal Per Se: Supreme Court

The Division Bench comprising Justice DY Chandrachud & Justice MR Shah has recently observed that an open inquiry at the stage of pre-registration of FIR in case of an allegation against the corrupt practice is not per se illegal.

"Even at the stage of registering the first information report, the police officer is not required to be satisfied or convinced that a cognizable offense has been committed. It is enough if the information discloses the commission of a cognizable offense. The information only sets in motion the investigative machinery to collect all necessary evidence and thereafter to take action by law. Therefore, holding such an inquiry, maybe a discrete/open inquiry, at pre-registration of FIR stage in the case of allegation of corrupt practice of accumulating assets disproportionate to his known sources of income, cannot be said to be per se illegal." the Bench noted.

In the present matter, a complaint was received in the office of Director General, Anti-corruption Bureau, against the appellant working as a public servant regarding the accumulation of assets disproportionate to his known sources of income. Thereafter, a notice was issued by the Police Inspector, Anti Corruption Bureau ("ACB") calling upon the appellant to asking him to personally remain present before the investigating officer of the ACB to give his statement in an 'open inquiry' in respect of the property owned by him along with the information on the points stated in the notice.

Aggrieved, the appellant approached the Bombay High Court against the order on the ground that ACB had no power to issue the said notice & that the notice was issued in purported exercise of power u/s 160 Cr. P.C., which was not applicable as the appellant was not a witness in the case. Thereafter, the Bombay High Court dismissed the petition & observed that,

"A preliminary inquiry to verify the correctness of the allegations and also to elicit some information/material which may be relevant for deciding the question regarding commission or non-commission of cognizable offense would be permissible."

Thereafter, the appellant, by way of an appeal, approached this Court to quash & set aside the order passed by the Bombay High Court & the notice dated 04.03.2020 on the ground that the notice issued by the Anti-Corruption Bureau had no statutory force. It was also contended that calling the appellant to give a statement on the notice's points was violative of Art 20(3) & Art 21.

While opposing the present appeal, the Respondent's Counsel, while relying on Lalita Kumari v. Govt of Uttar Pradesh (2014) 2 SCC 1 submitted that the notice issued by the Police Inspector was in consonance with the ACB Manual that permitted discrete & open inquiries to find out the veracity of allegations in the complaint. It was also contended that an open inquiry was warranted before the registration of an offense as Section 13(e) of Prevention of Corruption Act made it apparent that the person against whom a complaint is received had to satisfy the investigating agency whether his assets are in consonance with his known sources of income and accountable.

The issue that arose for consideration was whether such an inquiry at the pre-FIR stage was legal and to what extent the inquiry was permissible.

Concerning the legality of the inquiry at pre FIR stage, the Bench placed reliance on Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1 in which the Court observed that,

"It is mandatory to register an FIR on receipt of information disclosing a cognizable offense, and it is the general rule. While holding that the registration of FIR is mandatory under Section 154 if the information discloses commission of a cognizable offense and no preliminary inquiry is permissible in such a situation. The same is the general rule and must be strictly complied with, this Court has carved out certain situations/cases in which the preliminary inquiry is held to be permissible/desirable before registering/lodging of an FIR. If the information received does not disclose a cognizable offense but indicates the necessity for an inquiry, a preliminary inquiry may be conducted to ascertain whether a cognizable offense is disclosed or not. It is observed that as to what type and in which cases the preliminary inquiry is to be conducted will depend upon the facts and circumstances of each case."

Thus the Court, after further referring to the Supreme Court judgment in Superintendent of Police, CBI v. Tapan Kumar Singh (2003) 6 SCC 175, & Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual of Instructions 1968 ("ACB Manual") observed that the ACB Manual provided for a foolproof safeguard & procedure to lodge an FIR/ complaint before the Court against the public servant facing allegations of corrupt practice & thus such an inquiry could be conducted to ascertain the disclosure of a cognizable offense.

With regards to the extent, scope & ambit of the "open inquiry," the Bench noted that,

"A notice, while conducting the 'open inquiry,' shall be restricted to facilitate the appellant to clarify regarding his assets and known sources of income. The same cannot be said to be a fishing or roving inquiry. Such a statement cannot be said to be a statement under Section 160 and/or the statement to be recorded during the course of investigation as per the Code of Criminal Procedure. Such a statement even cannot be used against the appellant during the course of the trial. Statement of the appellant and the information so received during the course of discrete inquiry shall be only to satisfy and find out whether an offense under Section 13(1)(e) of the P.C. Act, 1988 is disclosed. Such a statement cannot be said to be confessional. As and when and/or if such a statement is considered to be confessional, in that case only, it can be said to be a statement which is self-incriminatory, which can be said to be impermissible in law."

Thus, while dismissing the appeal, the Court remarked that the appellant's statement on the points mentioned in the impugned notice was only relevant to ascertain the disclosure of a cognizable offense to enable the appellant to clarify the allegations made against him with respect to the accumulation of assets disproportionate to his known sources of income and the same was not to be treated as a confessional statement.

Case Title: Charan Singh v. State of Maharashtra & Ors| Crl Appeal No 363 of 2021