# CENTRAL BUREAU OF INVESTIGATION (CBI) AND ANR v. THOMMANDRU HANNAH VIJAYALAKSHMI @ T. H. VIJAYALAKSHMI AND ANR

- **Citation:** [2021] 13 S.C.R. 364
- **Court:** Supreme Court of India
- **Decided:** 2021-10-08
- **Case number:** Criminal Appeal No. 1045 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, Vikram Nath, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/central-bureau-of-investigation-cbi-and-anr-v-thommandru-hannah-vijayalakshmi-t-35262
- **Pages:** 60

## Headnote

Prevention of Corruption Act 1988 - s.13(2) r/w s.13(1)(e) -
Penal Code, 1860 - s.109 - Central Bureau of Investigation (Crime)
Manual 2005 - Constitution of India - Article 226 - Code of
Criminal Procedure, 1973 - s.482 - Corruption cases - Preliminary
enquiry if mandatory before registering an FIR - FIR registered
against first respondent, Commissioner of Income Tax on the basis
of "source information" for allegedly possessing assets
disproportionate to her known sources of income - Second
respondent, her husband is alleged to have abetted the offence -
FIR quashed by High Court inter alia holding that the appellant
should have conducted a Preliminary Enquiry before registration
of the FIR - On appeal, held: Institution of a Preliminary Enquiry
in cases of corruption is not made mandatory before the registration
of an FIR under the CrPC, PC Act or even the CBI Manual - In
case the information received by the CBI, through a complaint or a
"source information" under Chapter 8, discloses the commission
of a cognizable offence, it can directly register a Regular Case
instead of conducting a Preliminary Enquiry - This does not take
away from the value of conducting a Preliminary Enquiry in an
appropriate case - High Court should have only considered whether
the contents of the FIR as they stand, prima facie make out a
cognizable offence instead of conducting a mini-trial - Documents
relied upon by the respondents cannot form the basis of quashing
the FIR as the value and weight to be ascribed to the documents is
a matter of trial - Impugned judgment of High Court set aside -
Appellant can continue with investigation based upon the FIR -
Delhi Special Police Establishment Act, 1946 - s.6.
[2021] 13 S.C.R. 364
364
A
B
C
D
E
F
G
H
365
Constitution of India - Article 226 - Code of Criminal
Procedure, 1973 - s.482 - Quashing of FIR - Review by High Court
- Scope of - Discussed.
Allowing the appeal, the Court
HELD: 1.1 If a Preliminary Enquiry is necessary, it is
covered by Chapter 9 of the CBI Manual. Two distinct principles
emerge from Para 9.1: (i) a Preliminary Enquiry is registered
when information (received from a complaint or source information
) after verification indicates serious misconduct on part of a public
servant but is not enough to justify the registration of a Regular
Case; and (ii) when the information available or after its secret
verification reveals the commission of a cognizable. The
precedents of this Court and the provisions of the CBI Manual
make it abundantly clear that a Preliminary Enquiry is not
mandatory in all cases which involve allegations of corruption.
Para 9.1 of the CBI Manual notes that a Preliminary Enquiry is
required only if the information (whether verified or unverified)
does not disclose the commission of a cognizable offence. Even
when a Preliminary Enquiry is initiated, it has to stop as soon as
the officer ascertains that enough material has been collected
which discloses the commission of a cognizable offence. Hence,
the proposition that a Preliminary Enquiry is mandatory is plainly
contrary to law, for it is not only contrary to the decision of the
Constitution Bench in Lalita Kumari but would also tear apart
the framework created by the CBI Manual. [Paras 27, 29]
[400-G-H; 401-E-H]
Lalita Kumari v. Govt. of UP and others (2014) 2 SCC
1 : [2013] 14 SCR 713- followed.
1.2 Since the institution of a Preliminary Enquiry in cases
of corruption is not made mandatory before the registration of an
FIR under the CrPC, PC Act or even the CBI Manual, for this
Court to issue a direction to that affect will be tantamount to
stepping into the legislative domain. Hence, in case the
information received by the CBI, through a complaint or a -
"source information" under Chapter 8, discloses the commission
of a cognizable offence, it can directly register a Regular Case
instead of conducting a Preliminary Enquiry, where the officer is
CBI v. T. H. VIJAYALAKSHMI
A
B
C
D
E
F
G
H
366
SUPREME COURT REPORTS

## Text

_Characters 0–39,939 of 126,854. This is a partial read: ask again with offset=39939 for what follows._

A
B
C
D
E
F
G
H
364
SUPREME COURT REPORTS
[2021] 13 S.C.R.
CENTRAL BUREAU OF INVESTIGATION (CBI) AND ANR.
v.
THOMMANDRU HANNAH VIJAYALAKSHMI @ T. H.
VIJAYALAKSHMI AND ANR.
(Criminal Appeal No. 1045 of 2021)
OCTOBER 08, 2021
[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND B. V. NAGARATHNA, JJ.]
Prevention of Corruption Act 1988 - s.13(2) r/w s.13(1)(e) -
Penal Code, 1860 - s.109 - Central Bureau of Investigation (Crime)
Manual 2005 - Constitution of India - Article 226 - Code of
Criminal Procedure, 1973 - s.482 - Corruption cases - Preliminary
enquiry if mandatory before registering an FIR - FIR registered
against first respondent, Commissioner of Income Tax on the basis
of "source information" for allegedly possessing assets
disproportionate to her known sources of income - Second
respondent, her husband is alleged to have abetted the offence -
FIR quashed by High Court inter alia holding that the appellant
should have conducted a Preliminary Enquiry before registration
of the FIR - On appeal, held: Institution of a Preliminary Enquiry
in cases of corruption is not made mandatory before the registration
of an FIR under the CrPC, PC Act or even the CBI Manual - In
case the information received by the CBI, through a complaint or a
"source information" under Chapter 8, discloses the commission
of a cognizable offence, it can directly register a Regular Case
instead of conducting a Preliminary Enquiry - This does not take
away from the value of conducting a Preliminary Enquiry in an
appropriate case - High Court should have only considered whether
the contents of the FIR as they stand, prima facie make out a
cognizable offence instead of conducting a mini-trial - Documents
relied upon by the respondents cannot form the basis of quashing
the FIR as the value and weight to be ascribed to the documents is
a matter of trial - Impugned judgment of High Court set aside -
Appellant can continue with investigation based upon the FIR -
Delhi Special Police Establishment Act, 1946 - s.6.
[2021] 13 S.C.R. 364
364
A
B
C
D
E
F
G
H
365
Constitution of India - Article 226 - Code of Criminal
Procedure, 1973 - s.482 - Quashing of FIR - Review by High Court
- Scope of - Discussed.
Allowing the appeal, the Court
HELD: 1.1 If a Preliminary Enquiry is necessary, it is
covered by Chapter 9 of the CBI Manual. Two distinct principles
emerge from Para 9.1: (i) a Preliminary Enquiry is registered
when information (received from a complaint or source information
) after verification indicates serious misconduct on part of a public
servant but is not enough to justify the registration of a Regular
Case; and (ii) when the information available or after its secret
verification reveals the commission of a cognizable. The
precedents of this Court and the provisions of the CBI Manual
make it abundantly clear that a Preliminary Enquiry is not
mandatory in all cases which involve allegations of corruption.
Para 9.1 of the CBI Manual notes that a Preliminary Enquiry is
required only if the information (whether verified or unverified)
does not disclose the commission of a cognizable offence. Even
when a Preliminary Enquiry is initiated, it has to stop as soon as
the officer ascertains that enough material has been collected
which discloses the commission of a cognizable offence. Hence,
the proposition that a Preliminary Enquiry is mandatory is plainly
contrary to law, for it is not only contrary to the decision of the
Constitution Bench in Lalita Kumari but would also tear apart
the framework created by the CBI Manual. [Paras 27, 29]
[400-G-H; 401-E-H]
Lalita Kumari v. Govt. of UP and others (2014) 2 SCC
1 : [2013] 14 SCR 713- followed.
1.2 Since the institution of a Preliminary Enquiry in cases
of corruption is not made mandatory before the registration of an
FIR under the CrPC, PC Act or even the CBI Manual, for this
Court to issue a direction to that affect will be tantamount to
stepping into the legislative domain. Hence, in case the
information received by the CBI, through a complaint or a -
"source information" under Chapter 8, discloses the commission
of a cognizable offence, it can directly register a Regular Case
instead of conducting a Preliminary Enquiry, where the officer is
CBI v. T. H. VIJAYALAKSHMI
A
B
C
D
E
F
G
H
366
SUPREME COURT REPORTS
[2021] 13 S.C.R.
satisfied that the information discloses the commission of a
cognizable offence. The said formulation does not take away from
the value of conducting a Preliminary Enquiry in an appropriate
case. The registration of a Regular Case can have disastrous
consequences for the career of an officer, if the allegations
ultimately turn out to be false. In a Preliminary Enquiry, the CBI
is allowed access to documentary records and speak to persons
just as they would in an investigation, which entails that
information gathered can be used at the investigation stage as
well. Hence, conducting a Preliminary Enquiry would not take
away from the ultimate goal of prosecuting accused persons in a
timely manner. However, it is once again clarified that if the CBI
chooses not to hold a Preliminary Enquiry, the accused cannot
demand it as a matter of right. [Paras 32, 33][403-E-H; 404-A-C]
Union of India v. State of Maharashtra (2020) 4 SCC
761 : [2019] (12) SCR 1125; The State of Telangana v.
Managipet (2019) 19 SCC 87; Vinod Dua v. Union of
India and others 2021 SCC OnLine SC 414; P.
Sirajuddin v. State of Madras (1970) 1 SCC 595 : [1970]
(3) SCR 931; Charansingh v. State of Maharashtra
(2021) 5 SCC 469 - relied on.
2.1 The High Court has taken note of the following
documents filed by the respondents: (i) Income Tax Returns; (ii)
disclosures by the first respondent to her Department under the
CCS Rules; (iii) an affidavit filed by the second respondent under
the RP Act and the Rules; (iv) a letter dated 14 March 2016 by
the first respondent to Principal Chief Commissioner of Income
Tax (CCA), Chennai in relation to the details of the construction
of her house, and proof of it having been taken on the record by
an Office Memorandum dated 12 June 2017; and (v) a letter dated
15 June 2016 from the Deputy Commissioner of Income Tax,
Hyderabad noting the intimation received from the first
respondent in relation to the sale of her property and value
realized on 27 February 2016, and the intimation by the first
respondent in regard to the investment undertaken by her. There
is a fundamental error on the part of the Single Judge in conflating
a document which is in the public realm with the truth of its
contents. [Para 37][409-D-H]
A
B
C
D
E
F
G
H
367
State of Haryana & others v. Bhajan Lal (1992) Sup 1
SCC 335 : [1990] (3) Suppl. SCR 259; Neeharika
Infrastructure Pvt. Ltd. v. State of Maharashtra and
others 2021 SCC OnLine SC 315 - relied on.
2.2 The Single Judge of the Telangana High Court has acted
completely beyond the settled parameters which govern the
power to quash an FIR. The Single Judge has donned the role of
a Chartered Accountant. The Single Judge has completely ignored
that the Court was not at the stage of trial or considering an appeal
against a verdict in a trial. The Single Judge has enquired into
the material adduced by the respondents, compared it with the
information provided by the CBI in the FIR and their counteraffidavit, and then pronounced a verdict on the merits of each
individual allegation raised by the respondents largely relying
upon the documents filed by them (by considering them to be
'known sources of income' within the meaning of Section 13(1)(e)
of the PC Act). This exercised has been justified on account of
the appellant not having conducted a Preliminary Enquiry and
hence, not having addressed the respondents' objections relying
upon the documents adduced by them. The reasons provided by
the Single Judge for entering into the merits of the dispute while
quashing the FIR are specious, especially so considering the
finding of this Court that the CBI need not hold a Preliminary
Enquiry mandatorily. While exercising its jurisdiction under
Article 226 of the Constitution to adjudicate on a petition seeking
the quashing of an FIR, the High Court should have only
considered whether the contents of the FIR - as they stand and
on their face - prima facie make out a cognizable offence.
However, it is evident that in a judgment spanning a hundred and
seven pages (of the paper-book in this appeal) the Single Judge
has conducted a mini-trial, overlooking binding principles which
govern a plea for quashing an FIR. A court cannot conduct a minitrial at the stage of framing of charges. Hence, doing so at the
stage of considering a petition for quashing an FIR under Section
482 of the CrPC or Article 226 of the Constitution is obviously
also impermissible. Therefore, the reasoning provided by the
Telangana High Court in its impugned judgment for quashing
the FIR is disapproved. [Paras 40, 41][413-A-E; 414-B-C]
CBI v. T. H. VIJAYALAKSHMI
A
B
C
D
E
F
G
H
368
SUPREME COURT REPORTS
[2021] 13 S.C.R.
Gunmala Sales (P) Ltd. v. Anu Mehta (2015) 1 SCC
103 : [2014] (10) SCR 1117 - relied on.
3. The documents which have been relied upon by the
respondents cannot form the basis of quashing the FIR. The value
and weight to be ascribed to the documents is a matter of trial.
The appellant is challenging the very "source" of the respondents'
income and the questioning the assets acquired by them based
on such income. Hence, at the stage of quashing of an FIR where
the Court only has to ascertain whether the FIR prima facie makes
out the commission of a cognizable offence, reliance on the
documents produced by the respondents to quash the FIR would
be contrary to fundamental principles of law. The High Court has
gone far beyond the ambit of its jurisdiction by virtually conducting
a trial in an effort to absolve the respondents. There is no clash
between the decisions in Kedari Lal and J. Jayalalitha for two
reasons: (i) the judgment in J. Jayalalitha notes that a document
like the Income Tax Return, by itself, would not be definitive
evidence in providing if the source of one's income was lawful
since the Income Tax Department is not responsible for
investigating that, while the facts in the judgment in Kedari Lal
were such that the - source of the income was not in question at
all and hence, the Income Tax Returns were relied upon
conclusively; and (ii) in any case, the decision in Kedari Lal was
delivered while considering a criminal appeal challenging a
conviction under the PC Act, while the present matter is at the
stage of quashing of an FIR. [Paras 48, 49][421-C-G]
4. Extensive arguments had been raised by the respondents
in relation to whether the appellant could even register the case
against the respondents, since the State of Andhra Pradesh has
withdrawn the general consent given to the appellant under
Section 6 of the DSPE Act through an order dated 8 November
2018. This has been countered by the appellant by noting: (i)
that the FIR has been registered in Chennai, and that the general
consent by the State of Tamil Nadu under Section 6 of the DSPE
Act still stands; (ii) that the first respondent is an employee of
the Central Government; and (iii) that the second respondent is
alleged to be an abettor under Section 109 of the IPC. Similarly,
A
B
C
D
E
F
G
H
369
arguments have also been raised by both sides in relation to the
jurisdiction of the Telangana High Court and whether the FIR
could have been registered against the second respondent without
the consent of the Speaker (since he is a sitting MLA). However,
at this stage it is not necessary to adjudicate them and these
issues are being left open without commenting upon their merits.
The impugned judgment of the Single Judge of the Telangana
High Court quashing the FIR and any proceedings pursuant to it
is set aside. The appellant can continue with its investigation
based upon the FIR. [Paras 51, 52][422-E-H; 423-A]
Kedari Lal v. State of M.P. (2015) 14 SCC 505 -
distinguished.
K. Veeraswami v. Union of India (1991) 3 SCC 655 :
[1991] (3) SCR 189 - followed.
State of Karnataka v. J. Jayalalitha (2017) 6 SCC 263
: [2017] (5) SCR 525; Union of India and another v.
W.N. Chadha (1993) Supp (4) SCC 260 : [1992] (3)
Suppl. SCR 594; State of Maharashtra v. lshwar Piraji
Kalpatri (1996) 1 SCC 542 : [1995] (5) Suppl. SCR
812; Narendar G. Goel v. State of Maharashtra (2009)
6 SCC 65 : [2009] (8) SCR 1004; Samaj Parivarthan
Samudhaya v. State of Karnataka (2012) 7 SCC 407 :
[2012] (5) SCR 1074; Shanti Devi Alia Shanti Mishra
v. Union of India (2020) 10 SCC 766; Navinchandra
N. Majithia v. State of Maharashtra (2000) 7 SCC 640
: [2000] (3) Suppl. SCR 82; Pepsi Foods Ltd. v. Special
Judicial Magistrate (1998) 5 SCC 749 : [1997] (5)
Suppl. SCR 12; Kapil Agarwal v. Sanjay Sharma (2021)
5 SCC 524; Shashikant v. CBI (2007) 1 SCC 630 :
[2006] (8) Suppl. SCR 474; Vineet Narain v. Union of
India (1998) 1 SCC 226 : [1997] (6) Suppl. SCR 595;
CBI v. Ashok Kumar Aggarwal (2014) 14 SCC 295 :
[2013] (14) SCR 983; State of Jharkhand v. Lalu Prasad
Yadav (2017) 8 SCC 1 : [2017] (3) SCR 630; Nirmal
Singh Kahlon v. State of Punjab (2009) 1 SCC 441 :
[2008] (14) SCR 1049; Yashwant Sinha v. CBI (2020)
2 SCC 338 : [2019] (17) SCR 917; P.V. Narasimha Rao
CBI v. T. H. VIJAYALAKSHMI
A
B
C
D
E
F
G
H
370
SUPREME COURT REPORTS
[2021] 13 S.C.R.
v. State (CBI/SPE) (1998) 4 SCC 626 : [1998] (2) SCR
870; State of Kerala v. K. Ajith and others Criminal
Appeal No 698 of 2021; State of West Bengal v.
Committee for Protection of Democratic Rights (2010)
3 SCC 571 : [2010] (2) SCR 979; Mayawati v. Union
of India (2012) 8 SCC 106 : [2012] (7) SCR 33; M.
Balakrishna Reddy v. CBI (2008) 4 SCC 409 : [2008]
(4) SCR 1154; Central Bureau of Investigation v. State
of Rajasthan (1996) 9 SCC 735 : [1996] (3) Suppl.
SCR 127; Kazi Lhendup Dorji v. CBI 1994 Supp (2)
SCC 116 : [1994] (3) SCR 201; Harshendra Kumar D.
Rebatilata Koley (2011) 3 SCC 351 : [2011] (2) SCR
670; Suresh Kumar Goyal v. State of U.P. (2019) 14
SCC 318 : [2019] (1) SCR 236; Pooja Ravinder
Devidasani v. State of Maharashtra (2014) 16 SCC 1 :
[2014] (14) SCR 1468; State of M.P. v. Mohanlal Soni
(2000) 6 SCC 338; Subhash Kashinath Mahajan v.
State of Maharashtra (2018) 6 SCC 454 : [2018] SCR
4 877; State of Orissa v. Debendra Nath Padhi (2005)
1 SCC 568 : [2004] (6) Suppl. SCR 460; Bharat Parikh
v. CBI (2008) 10 SCC 109 : [2008] (10) SCR 950; Indu
Jain v. State of M.P. (2008) 15 SCC 341 : [2008] (14)
SCR 1137; Asian Resurfacing of Road Agency (P) Ltd.
v. CBI (2018) 16 SCC 299 : [2018] (2) SCR 1045 -
referred to.
Case Law Reference
[2013] (14) SCR 713
followed
Para 9 (iii)
(2019) 19 SCC 87
relied on
Para 9 (iii)
[1991] (3) SCR 189
followed
Para 9 (vi)
[1992] (3) Suppl. SCR 594
referred to
Para 9 (vi)
[1995] (5) Suppl. SCR 812
referred to
Para 9 (vi)
[2009] (8) SCR 1004
referred to
Para 9 (vi)
[2012] (5) SCR 1074
referred to
Para 9 (vi)
[2017] (5) SCR 525
referred to
Para 9 (ix)
(2020) 10 SCC 766
referred to
Para 10 (i)
A
B
C
D
E
F
G
H
371
[2000] (3) Suppl. SCR 82
referred to
Para 10 (i)
[1997] (5) Suppl. SCR 12
referred to
Para 10 (i)
(2021) 5 SCC 524
referred to
Para 10 (i)
[1997] (6) Suppl. SCR 595
referred to
Para 10 (ii)
[2006] (8) Suppl. SCR 474
referred to
Para 10 (ii)
[2013] (14) SCR 983
referred to
Para 10 (ii)
[2017] (3) SCR 630
referred to
Para 10 (ii)
[2008] (14) SCR 1049
referred to
Para 10 (iii)
[2019] (17) SCR 917
referred to
Para 10 (iv)
(2021) 5 SCC 469
relied on
Para 10 (iv)
[1970] (3) SCR 931
relied on
Para 10 (iv)
[1998] (2) SCR 870
referred to
Para 10 (viii)
[2010] (2) SCR 979
referred to
Para 10 (b)
[2012] (7) SCR 33
referred to
Para 10 (c)
[2008] (4) SCR 1154
referred to
Para 10 (c) (iv)
[1996] (3) Suppl. SCR 127
referred to
Para 10 (c) (iv)
[1994] (3) SCR 201
referred to
Para 10 (c) (iv)
[2011] (2) SCR 670
referred to
Para 10 (x)
[2019] (1) SCR 236
referred to
Para 10 (x)
[2014] (14) SCR 1468
referred to
Para 10 (x)
(2015) 14 SCC 505
distinguished
Para 10 (x)
(2000) 6 SCC 338
referred to
Para 10 (x)
[1990] (3) Suppl. SCR 259
relied on
Para 10 (xi)
[2019] (12) SCR 1125
relied on
Para 30
[2018] 4 SCR 877
referred to
Para 30
[2014] (10) SCR 1117
relied on
Para 41
[2004] (6) Suppl. SCR 460
referred to
Para 41
[2008] (10) SCR 950
referred to
Para 41
[2008] (14) SCR 1137
referred to
Para 41
[2018] (2) SCR 1045
referred to
Para 41
CBI v. T. H. VIJAYALAKSHMI
A
B
C
D
E
F
G
H
372
SUPREME COURT REPORTS
[2021] 13 S.C.R.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1045 of 2021.
From the Judgment and Order dated 11.02.2020 of the High Court
for the State of Telangana at Hyderabad in Writ Petition No.8552 of
2018.
Ms. Aishwarya Bhati, ASG, Adit Khorana, Prashant Singh, Shantnu
Sharma, Arvind Kumar Sharma, Navanjay Mahapatra, Advs. for the
Appellants.
Siddhartha Dave, Sidharth Luthra, Sr. Advs., S. Sanatanam
Swaminadhan, Ms. Abhilasha Shrawat, Ms. Prakruti Golechha, Mrs.
Aarthi Rajan, Hirendranath, Rahul Sharma, Saaketh Kasibhatla, A.
Karthik, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into sections to facilitate analysis.
They are:
A
The Appeal
B
Factual and procedural history
C
Counsel's submissions
D
Whether a Preliminary Inquiry is mandatory before
registering an FIR
D.1
Precedents of this Court
D.2
CBI Manual
D.3
Analysis
E
Whether the FIR should be quashed
E.1
Scope of review before the High Court
E.2
Whether the FIR is liable to be quashed in the present
case
F
Conclusion
A
B
C
D
E
F
G
H
373
A The Appeal
1. The appeal arises from a judgment dated 11 February 2020 of
a Single Judge of the High Court for the State of Telangana, by which:(i)a
writ petition1 filed by the respondents under Article 226 of the Constitution
of India was allowed; and (ii) the First Information Report2 dated 20
September 2017 registered against the respondents was set aside, together
with proceedings taken up pursuant to the FIR.
2. The first respondent is a Commissioner of Income Tax while
the second respondent is her spouse. The second respondent is a Member
of the Legislative Assembly3 and is a Minister in the State government
of Andhra Pradesh. The FIR4 dated 20 September 2017 has been
registered against the first respondent for being in possession (allegedly)
of assets disproportionate to her known sources of income. The second
respondent is alleged to have abetted the offence. The FIR has thus
been registered for offences punishable under Section 13(2) read with
Section 13(1)(e) of the Prevention of Corruption Act 19885 and Section
109 of the Indian Penal Code 18606. The allegation is of possession of
Disproportionate Assets to the tune of Rs 1,10,81,692, which was 22.86
per cent of the income earned during the check period between 1 April
2010 to 29 February 2016.
3. While quashing the FIR, the High Court held that: (i) the
information about the respondents' income can be ascertained from their
'known sources of income' under Section 13(1)(e) of the PC Act, such
as their Income Tax Returns, information submitted to their department
under the Central Civil Services (Conduct) Rules 19647 and affidavit
filed under the Representation of the People Act 19518 and the Rules
under it; (ii) to counter the veracity of the information from these sources,
the appellant, Central Bureau of Investigation9, should have conducted a
Preliminary Enquiry under the Central Bureau of Investigation (Crime)
1 Writ Petition No 8552 of 2018
2 "FIR"
3 "MLA"
4 FIR No RC MAl 2017 A 0021
5 "PC Act"
6 "IPC"
7 "CCS Rules"
8 "RP Act"
9 "CBI"
CBI v. T. H. VIJAYALAKSHMI
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
374
SUPREME COURT REPORTS
[2021] 13 S.C.R.
Manual 200510 before registration of the FIR; and (iii) on the basis of
the information ascertained from these 'known sources of income', the
allegations against the respondents in the FIR prima facie seem
unsustainable. This view of the High Court has been called into question
in these proceedings.
B Factual and procedural history
4. Since 1992, the first respondent is a Civil Servant of the Indian
Revenue Services11, and was working as Commissioner of Income Tax
(Audit -II), Tamil Nadu & Pondicherry when the FIR was registered
against her. She is presently working as Commissioner of Income Tax
(Audit) at Hyderabad. The second respondent is the spouse of the first
respondent, and was also a Civil Servant working in the Indian Railway
Accounts Services till 2009. At the time of the registration of the FIR,he
was and continues to be, at present, an MLA of the State of Andhra
Pradesh and holds the post of the Minister of Education for the State of
Andhra Pradesh. He was also a Member of the Committees on
Assurances, SC&ST Welfare and Public Accounts.
5. The FIR was registered against the respondents by CBI's AntiCorruption Branch12 in Chennai on 20 September 2017. The FIR noted
that the "check period" was between 1 April 2010 and 29 February
2016. The FIR records that it was registered on the basis of "source
information" received by the CBI ACB Chennai on the same date, at
about 4 pm. There are four tabulated statements in the FIR. Statement
A provides that the respondents' assets at the beginning of the check
period (1 April 2010) were in the amount of Rs 1,35,26,066 while
Statement-B indicates that their assets at the end of the check period
(29 February 2016) were Rs 6,90,51,066. Hence, their assets earned
during the check period (i.e., between 1 April 2010 to 29 February 2016)
were alleged to be to the tune of Rs 5,55,25,000. According to StatementC, the respondents' income during the check period was Rs 4,84,76,630
while according to Statement-D their expenditure during the check period
was Rs 40,33,322. Hence, the respondents are alleged to have acquired
assets/pecuniary advantage to the extent of Rs 5,95,58,322 (adding the
Assets, Rs 5,55,25,000 and Expenditure, Rs 40,33,322) against an Income
10 "CBI Manual"
11 "IRS"
12 "ACB"
A
B
C
D
E
F
G
H
375
of Rs 4,84,76,630 earned during the check period. Therefore, their
Disproportionate Assets13 during the check period were computed at Rs
1,10,81,692, which is 22.86 per cent of the total income earned by them.
The computation reflected in the FIR is as follows:
"Calculation of Disproportionate Assets:-
"
On the basis of the FIR dated 20 September 2017, the CBI ACB
Chennai registered a case14 against the respondents for offences
punishable under Sections 13(2) read with 13(1)(e) of the PC Act and
Section 109 of the IPC.
6. On 5 March 2018, the respondents filed a writ petition before
the Telangana High Court under Article 226 of the Constitution seeking
quashing of the FIR. In their writ petition, the respondents averred that:
(i) the FIR is politically motivated since the second respondent belongs
to a rival political party; (ii) the appellant did not conduct a Preliminary
Enquiry before registering the FIR; and (iii) the particulars in the FIR
did not constitute an offence and would not, as they stand, result in the
respondents' conviction. Further, the petition pointed out inconsistencies
in the FIR where certain assets had been allegedly over-valued while
income had been under-valued, without any explanation. Hence, the
petition before the High Court urged that the FIR was liable to be quashed.
To support their contentions, the respondents annexed their Income Tax
Returns, immovable property declarations for the period between 2010
to 2017 made by the first respondent under the CCS Rules, affidavit
filed by the second respondent under the RP Act and Rules thereunder
13 Calculated by adding the Assets and Expenditure during the check period, and
subtracting the Income from it.
14 Case RC 21(A)12017
CBI v. T. H. VIJAYALAKSHMI
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
376
SUPREME COURT REPORTS
[2021] 13 S.C.R.
in 2014 and letters under the CCS Rules explaining the cost/value of
construction of their house.
7. In response, the appellant filed a counter-affidavit before the
Telangana High Court where it was stated, inter alia, that: (i) the writ
petition was filed belatedly, two years after the registration of the FIR;
(ii) in any case, the writ petition should have been filed before the Madras
High Court since the Court of the Principal Special Judge for CBI Cases,
(VIIIth Additional City Civil Court), Chennai had jurisdiction over the
case and the respondents were aware of this, and the FIR had also been
registered by the CBI ACB at Chennai;(iii) the FIR had been registered
on the basis of source information, and the case was still under
investigation; (iv) the respondents would be provided a chance to explain
their case during the investigation, and there was no requirement to
conduct Preliminary Enquiry before the registration of the FIR; and (v)
the respondents' income and assets cannot be conclusively ascertained
from the documents annexed by them, since their veracity has to be
determined during the investigation. Hence, the appellants urged that
the FIR could not be quashed.
8. As noted earlier in this judgment, the Telangana High Court
allowed the respondents' writ petition by its impugned judgement dated
11 February 2020 and quashed the FIR, and set aside all proceedings
initiated pursuant to it. The appellant CBI has now moved this Court for
challenging the decision of the High Court.
C Counsel's submissions
9. Assailing the judgment of the Telangana High Court, Ms
Aishwarya Bhati, Additional Solicitor General15 appearing on behalf of
the CBI has urged the following submissions:
(i)
The Telangana High Court did not have the jurisdiction to
entertain the writ petition filed by the respondents since:
a.
The FIR had been registered by the CBI ACB at
Chennai; and
b.
It had been submitted to the Principal Special Judge
for CBI Cases, (VIIIth Additional City Civil Court),
Chennai. Hence, only the Madras High Court had
jurisdiction to entertain the writ petition;
15 "ASG"
A
B
C
D
E
F
G
H
377
(ii)
The CBI Manual does not make it mandatory to conduct a
Preliminary Enquiry before the registration of the FIR and
its provisions are directory;
(iii)
A Preliminary Enquiry is only conducted when the
information received is not sufficient to register a Regular
Case. However, when the information available is adequate
to register a Regular Case since it discloses the commission
of a cognizable offence, no Preliminary Enquiry is
necessary. This will depend on the facts and circumstances
of each case, and the Preliminary Enquiry cannot be made
mandatory for all cases of alleged corruption. This
proposition finds support in the judgments of this Court in
Lalita Kumari v. Govt. of UP and others16 ("Lalita
Kumari") and The State of Telangana v. Managipet17
("Managipet");
(iv)
The FIR was registered on the basis of reliable source
information collected during the investigation of another
case18 in which the first respondent was one of the accused.
During the investigation of that case, CBI conducted
searches at four places belonging to the first respondent
during which documents were seized and she was also
examined. On the basis of such information and documents,
the FIR was registered in the present case. Hence, there
was no need for a Preliminary Enquiry;
(v)
There is also no need to conduct a Preliminary Enquiry
since the respondents will be provided with an opportunity
to explain each and every acquisition of their assets, and
their income and expenditure during the check period, during
the investigation. Hence, it was not necessary to provide
this opportunity before the registration of an FIR (through
a Preliminary Enquiry) since there would have been a risk
of tampering with or destruction of evidence by the accused
persons;
16 (2014) 2 SCC 1, paras 31-35, 37-39, 83-86, 89-92, 93-96, 101-105, 106-107, 111112, 114-119 and 120
17 (2019) 19 SCC 87, paras 33-34
18 RC MA1 2016A 0019-CBl/ACB/Chennai
CBI v. T. H. VIJAYALAKSHMI
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
378
SUPREME COURT REPORTS
[2021] 13 S.C.R.
(vi)
The Investigating Officer has no duty to call for any
explanation from the accused in relation to their assets before
registering an FIR against them since doing so would further
lengthen the proceeding. In any case, such an opportunity
is available to the accused persons at the stage of trial.
This principle emerges from the judgments of this Court in
K. Veeraswami v. Union of India19 ("K. Veeraswami"),
Union of India and another v. W.N. Chadha20, State of
Maharashtra v. lshwar Piraji Kalpatri21, Narendar G.
Goel v. State of Maharashtra22 and Samaj Parivarthan
Samudhaya v. State of Karnataka23;
(vii)
The FIR has been registered against the second respondent
under Section 109 of the IPC as an abettor, being in a
fiduciary relationship with the first respondent as her spouse.
As such, no consent of the Speaker was required before
the registration of the FIR against the second respondent.
A general consent has been accorded to the CBI by the
State of Tamil Nadu24 under Section 6 of the Delhi Special
Police Establishment Act 194625 for the offences under the
PC Act, which have been notified under Section 3 of the
DSPE Act. The first respondent is an officer of the Union
Government, serving in the IRS;
(viii) While hearing a petition seeking the quashing of an FIR,
the High Court has to consider the contents of the FIR and
whether the allegations made in it prima facie constitute
an offence. This is a settled principle, reiterated recently
by this court in Neeharika Infrastructure Pvt. Ltd. v.
State of Maharashtra and others26 ("Neeharika
Infrastructure"). In the present case, the High Court has
gone beyond the scope of its powers and conducted a mini19 (1991) 3 SCC 655, para 75
20 (1993) Supp (4) SCC 260, paras 90-98
21 (1996) 1 SCC 542, paras 16-17
22 (2009) 6 SCC 65, paras 11-16
23 (2012) 7 SCC 407, paras 49-50 and 60
24 Notification dated 2 July 1992
25 "DSPE Act"
26 2021 SCC OnLine SC 315, paras 36-37, 46, 50-51, 57 and 80 (xii-xviii)
A
B
C
D
E
F
G
H
379
trial while considering the evidence put forward by the
respondents, in order to quash the FIR;
(ix)
The High Court has erred in relying upon the Income Tax
Returns and other documents filed by the respondents while
quashing the FIR, since their veracity as "lawful sources of
income" will have to be determined during the investigation,
which has been ongoing for more than two years. The
decision of this Court in State of Karnataka v. J.
Jayalalitha27 ("J. Jayalalitha") reiterates this principle;
(x)
The High Court has solely relied on the documents filed by
the respondents while calculating their income, expenditure
and value of assets to hold that they did not possess any
Disproportionate Assets. However, no explanation has been
provided about why the calculations done by the CBI
resulting in the filing of the FIR and during its subsequent
investigation should be overlooked in favor of the
respondents' documents; and
(xi)
Pursuant to the stay granted by this Court of the impugned
judgment of the High Court, while issuing notice in the
present proceedings, the investigation has resumed and is
nearly complete. Nearly 140 witnesses have been
examined, and 7500 documents have been obtained, and it
has been stated that the investigation would be completed
within a period of two to three months.
10. Mr Siddharth Luthra and Mr Siddharth Dave, Senior Counsel
appearing on behalf of the respondents opposed the submissions and
urged that:
(i)
The Telangana High Court had jurisdiction to entertain the
writ petition since:
a.
No assets of the respondents are located in the State
of Tamil Nadu, while many of the properties are
located in the State of Andhra Pradesh.The
jurisdiction of the High Court under Article 226 of
the Constitution should be exercised liberally while
quashing an FIR in order to prevent the abuse of
27 (2017) 6 SCC 263
CBI v. T. H. VIJAYALAKSHMI
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
380
SUPREME COURT REPORTS
[2021] 13 S.C.R.
process of law. This finds support in the judgments
of this Court in Shanti Devi Alia Shanti Mishra v.
Union of India28, Navinchandra N. Majithia v.
State of Maharashtra29, Pepsi Foods Ltd. v.
Special Judicial Magistrate30 and Kapil Agarwal
v. Sanjay Sharma31; and
b.
In any case, CBI admitted to the jurisdiction of the
Telangana High Court when it did not challenge its
initial order dated 24 September 2019 admitting the
respondents' writ petition;
(ii)
In view of the decision of this court in Vineet Narain v.
Union of India32 ("Vineet Narain"), the provisions of the
CBI Manual must be followed strictly by the CBI. This has
been reiterated in Shashikant v. CBI33 ("Shashikant"),
CBI v. Ashok Kumar Aggarwal34 ("Ashok Kumar
Aggarwal") and State of Jharkhand v. Lalu Prasad
Yadav35;
(iii)
According to para 9.1 of the CBI Manual, a Preliminary
Enquiry must be conducted before an FIR is registered in
order to collect sufficient material which prima facie
establishes the commission of an offence. This is
emphasized in the judgments of this Court in Shashikant
(supra) and Nirmal Singh Kahlon v. State of Punjab36
("Nirmal Singh Kahlon");
(iv)
A Preliminary Enquiry before the registration of an FIR is
a necessary requirement in cases of alleged corruption
involving public servants, including those of Disproportionate
Assets, since undue haste would lead to registration of
frivolous and untenable complaints which could affect the
28 (2020) 10 SCC 766, para 33
29 (2000) 7 SCC 640, paras 16-18 and 22
30 (1998) 5 SCC 749, para 29
31 (2021) 5 SCC 524, paras 18-18.2
32 (1998) 1 SCC 226, para 58(12)
33 (2007) 1 SCC 630, paras 9, 11, 19 and 25
34 (2014) 14 SCC 295, paras 22-24
35 (2017) 8 SCC 1, paras 67-69
36 (2009) 1 SCC 441
A
B
C
D
E
F
G
H
381
careers of these officials. The judgments of this Court
in Yashwant Sinha v. CBI37 ("Yashwant Sinha"),
Charansingh
v.
State
of
Maharashtra38
("Charansingh"), P. Sirajuddin v. State of Madras39 ("P.
Sirajuddin"), Nirmal Singh Kahlon (supra)40 and Lalita
Kumari (supra)41 support this formulation;
(v)
The FIR states that it was filed on the basis of source
information received by the CBI ACB Chennai at 4 pm on
20 September 2017, following which the FIR was registered
and sent to the Court of the Principal Special Judge for
CBI Cases, (VIIIth Additional City Civil Court), Chennai
at 5 pm and was received there by 6.25 pm. Hence, it is
evident that no verification or Preliminary Enquiry was
conducted before registering the FIR;
(vi)
The failure of CBI to conduct a Preliminary Enquiry has
adversely affected the right of defence of the respondents
since their right to explain their income/expenditure/assets
has been taken away and an FIR has been directly registered
against them;
(vii)
In accordance with the CBI Manual, only the Director of
CBI and not any of its designated officers, has the power
to register a case in terms of Annexure 6A to the CBI
Manual or pass an order for a Preliminary Enquiry. Under
para 14.39 of the CBI Manual, an investigation in a
Disproportionate Assets case has to be completed within
18 months, while it has been ongoing for more than two
years in the present case;
(viii) In regard to the second respondent, CBI has no authority
to investigate a complaint since:
a.
While the second respondent may be a public servant
under the PC Act, the consent for his prosecution
can only be provided by the Speaker and not the
37 (2020) 2 SCC 338, paras 114-115 and 117
38 (2021) 5 SCC 469, paras 10-15
39 (1970) 1 SCC 595, para 17
40 (2009) 1 SCC 441, para 30
41 Paras 89, 92, 117, 120.5 and 120.6(d)
CBI v. T. H. VIJAYALAKSHMI
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
382
SUPREME COURT REPORTS
[2021] 13 S.C.R.
Central Government. Support for this proposition
arises from the judgments of this Court in P.V.
Narasimha Rao v. State (CBI/SPE)42 and State of
Kerala v. K. Ajith and others43;
b.
Even according to the decision of this Court in State
of West Bengal v. Committee for Protection of
Democratic Rights44, the CBI can exercise powers
and jurisdiction under the PC Act against an MLA or
an MP only on a direction of this Court/High Court
or on an order from the Speaker;
c.
The CBI has no authority since under the DSPE Act:
i.
No notification has been issued by the Central
Government specifying the offences against
an MLA to be investigated by the CBI(Section
3 of the DSPE Act);
ii.
No order has been passed by the Central
Government extending the powers and
jurisdiction of CBI in the State of Telangana
in respect of the offences specified under
Section 3 (Section 5 of the DSPE Act);
iii.
Consent of the State Government has not
been obtained for the exercise of powers by
the CBI in the State of Telangana (Section 6
of the DSPE Act); and
iv.
In support of this, reliance is placed upon
judgments of this Court in Mayawati v. Union
of India45, M. Balakrishna Reddy v. CBI46,
Central Bureau of Investigation v. State
of Rajasthan47 and Kazi Lhendup Dorji v.
CBI48;
42 (1998) 4 SCC 626, paras 98-99
43 Criminal Appeal No 698 of 2021, paras 24, 33, 36-39 and 61-64
44 (2010) 3 SCC 571, para 68
45 (2012) 8 SCC 106, paras 29-30
46 (2008) 4 SCC 409, para 19
47 (1996) 9 SCC 735, para 26
48 1994 Supp (2) SCC 116, para 13
A
B
C
D
E
F
G
H
383
(ix)
The FIR also deserves to be quashed since:
a.
It does not differentiate in relation to the separate
role of the two respondents and clubs the charges
against them, which vitiates their independent right
of defense. Further, the FIR has been filed against
the second respondent in Chennai even though he
has never held any public office there and no cause
of action arises there; and
b.
The complaint is completely false since the
respondents do not have any Disproportionate Assets
in the check period but rather have an excess of
income. To support this, the following chart has been
filed along with the counter-affidavit of the first
respondent:
CBI v. T. H. VIJAYALAKSHMI
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
384
SUPREME COURT REPORTS
[2021] 13 S.C.R.
(x)
The High Court has not solely relied upon the documents
produced by the respondents, while ignoring the material
elicited by the CBI through its investigation. The documents
produced by the respondent (Income Tax Returns, et al)
are lawful sources to determine the source of one's income,
and can be relied upon while determining whether a 'public
servant' under Section 13(1)(e) of the PC Act has
accumulated Disproportionate Assets in comparison to their
lawful income. Hence, the High Court could have
legitimately assessed the case of Disproportionate Assets
against the respondents by relying on such documents. In
support of this proposition, reliance is placed upon judgments
of this Court in Harshendra Kumar D. v. Rebatilata
Koley49, Suresh Kumar Goyal v. State of U.P.50, Pooja
Ravinder Devidasani v. State of Maharashtra51, Kedari
Lal v. State of M.P.52 ("Kedari Lal") and State of M.P.
v. Mohanlal Soni53; and
(xi)
The FIR deserved to be quashed in terms of the guidelines
enunciated in paragraph 102 (1, 3, 5, 6 and 7) of this Court's
judgment in State of Haryana & others v.Bhajan Lal54
("Bhajan Lal").
11. The rival submissions now fall for our consideration. Based
on the submissions, this Court is called upon to decide two questions: (i)
whether the CBI is mandatorily required to conduct a Preliminary Enquiry
49 (2011) 3 SCC 351, paras 25-26
50 (2019) 14 SCC 318, para 12
51 (2014) 16 SCC 1, paras 15, 17, 23, 27-28 and 30
52 (2015) 14 SCC 505, paras 10, 12 and 15-16
53 (2000) 6 SCC 338, paras 4, 6 and 11
54 (1992) Sup 1 SCC 335
A
B
C
D
E
F
G
H
385
before the registration of an FIR in every case involving claims of alleged
corruption against public servants; and (ii) independent of the first question,
whether the judgment of the High Court to quash the FIR can be
sustained in the present case.
D Whether a Preliminary Inquiry is mandatory before
registering an FIR
D.1 Precedents of this Court
12.