# CHARANSINGH v. STATE OF MAHARASHTRA AND OTHERS

- **Citation:** [2021] 3 S.C.R. 704
- **Court:** Supreme Court of India
- **Decided:** 2021-03-24
- **Case number:** Criminal Appeal No. 363 of 2021
- **Bench:** Dr. Dhananjaya Y. Chandrachud, M.R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/charansingh-v-state-of-maharashtra-and-others-35018
- **Pages:** 25

## Headnote

Code of Criminal Procedure, 1973: Preliminary enquiry -
Corruption case - A complaint was received against the appellant
in the office of the Director General, Anti-corruption Bureau,
Maharashtra State, Mumbai on 7.2.2018, wherein various
allegations were made against the appellant and his brothers with
regard to accumulating the assets disproportionate to his known
sources of income - At that time the appellant was a Member and
President of Municipal Council - In connection with the said
complaint, Police Inspector, Anti-corruption Bureau had issued
notice dated 04.03.2020 to the appellant asking him to provide
documents relating to his property, assets, bank statements, income
tax returns and to give statement to the police - Feeling aggrieved
with the said notice calling upon the appellant to personally remain
present before the investigating officer of the Anti-corruption
Bureau, Nagpur to give his statement in an 'open enquiry' in respect
of the property owned by him along with the information on the
points stated in the said notice, the appellant preferred writ petition
before the High Court - High Court dismissed the writ petition - In
the instant appeal, question which arose for the consideration was
whether such an enquiry at pre-FIR stage would be legal - Held:
An enquiry at pre-FIR stage is held to be permissible and not only
permissible but desirable, more particularly in cases where the
allegations are of misconduct of corrupt practice acquiring the
assets/properties disproportionate to his known sources of income
- After the enquiry/enquiry at pre-registration of FIR stage/
preliminary enquiry, if, on the basis of the material collected during
such enquiry, it is found that the complaint is vexatious and/or there
is no substance at all in the complaint, the FIR shall not be lodged
- However, if the material discloses prima facie a commission of the
offence alleged, the FIR will be lodged and the criminal proceedings
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will be put in motion and further investigation will be carried out in
terms of the Code of Criminal Procedure - Therefore, such a
preliminary enquiry would be permissible only to ascertain whether
cognizable offence is disclosed or not and only thereafter FIR would
be registered.
Code of Criminal Procedure, 1973: Preliminary enquiry -
Extent of, permissibility - By the impugned notice, during the course
of the 'open enquiry', the appellant was called upon to give his
statement and to carry along with the information on the points,
which are referred for the purpose of recording his statement - The
information sought on the said points had direct connection with
the allegations made against the appellant, namely, accumulating
assets disproportionate to his known sources of income - However,
such a notice, while conducting the 'open enquiry', 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 enquiry. Such a statement cannot be said to be a
statement under s.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 trial - Statement of the appellant and the information
so received during the course of discrete enquiry shall be only for
the purpose to satisfy and find out whether an offence under
s.13(1)(e) of the PC Act, 1988 is disclosed - Such a statement cannot
be said to be confessional in character, and 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 - Prevention of Corruption
Act, 1988 - s.13(1)(e).
Dismissing the appeal, the Court
HELD: 1.1 While considering the larger question, whether
police is duty bound to register an FIR and/or it is mandatory for
registration of FIR on receipt of

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 [2021] 3 S.C.R. 704
704
CHARANSINGH
v.
STATE OF MAHARASHTRA AND OTHERS
(Criminal Appeal No. 363 of 2021)
MARCH 24, 2021
[DR. DHANANJAYA Y. CHANDRACHUD
AND M.R. SHAH, JJ.]
Code of Criminal Procedure, 1973: Preliminary enquiry -
Corruption case - A complaint was received against the appellant
in the office of the Director General, Anti-corruption Bureau,
Maharashtra State, Mumbai on 7.2.2018, wherein various
allegations were made against the appellant and his brothers with
regard to accumulating the assets disproportionate to his known
sources of income - At that time the appellant was a Member and
President of Municipal Council - In connection with the said
complaint, Police Inspector, Anti-corruption Bureau had issued
notice dated 04.03.2020 to the appellant asking him to provide
documents relating to his property, assets, bank statements, income
tax returns and to give statement to the police - Feeling aggrieved
with the said notice calling upon the appellant to personally remain
present before the investigating officer of the Anti-corruption
Bureau, Nagpur to give his statement in an 'open enquiry' in respect
of the property owned by him along with the information on the
points stated in the said notice, the appellant preferred writ petition
before the High Court - High Court dismissed the writ petition - In
the instant appeal, question which arose for the consideration was
whether such an enquiry at pre-FIR stage would be legal - Held:
An enquiry at pre-FIR stage is held to be permissible and not only
permissible but desirable, more particularly in cases where the
allegations are of misconduct of corrupt practice acquiring the
assets/properties disproportionate to his known sources of income
- After the enquiry/enquiry at pre-registration of FIR stage/
preliminary enquiry, if, on the basis of the material collected during
such enquiry, it is found that the complaint is vexatious and/or there
is no substance at all in the complaint, the FIR shall not be lodged
- However, if the material discloses prima facie a commission of the
offence alleged, the FIR will be lodged and the criminal proceedings
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will be put in motion and further investigation will be carried out in
terms of the Code of Criminal Procedure - Therefore, such a
preliminary enquiry would be permissible only to ascertain whether
cognizable offence is disclosed or not and only thereafter FIR would
be registered.
Code of Criminal Procedure, 1973: Preliminary enquiry -
Extent of, permissibility - By the impugned notice, during the course
of the 'open enquiry', the appellant was called upon to give his
statement and to carry along with the information on the points,
which are referred for the purpose of recording his statement - The
information sought on the said points had direct connection with
the allegations made against the appellant, namely, accumulating
assets disproportionate to his known sources of income - However,
such a notice, while conducting the 'open enquiry', 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 enquiry. Such a statement cannot be said to be a
statement under s.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 trial - Statement of the appellant and the information
so received during the course of discrete enquiry shall be only for
the purpose to satisfy and find out whether an offence under
s.13(1)(e) of the PC Act, 1988 is disclosed - Such a statement cannot
be said to be confessional in character, and 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 - Prevention of Corruption
Act, 1988 - s.13(1)(e).
Dismissing the appeal, the Court
HELD: 1.1 While considering the larger question, whether
police is duty bound to register an FIR and/or it is mandatory for
registration of FIR on receipt of information disclosing a
cognizable offence and whether it is mandatory or the police officer
has option, discretion or latitude of conducting preliminary enquiry
before registering FIR, this Court in the case of Lalita Kumari
has observed that it is mandatory to register an FIR on receipt of
information disclosing a cognizable offence and it is the general
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rule. However, while holding so, this Court has also considered
the situations/cases in which preliminary enquiry is permissible/
desirable. While holding that the registration of FIR is mandatory
under Section 154, if the information discloses commission of a
cognizable offence and no preliminary enquiry is permissible in
such a situation and the same is the general rule and must be
strictly complied with, this Court has carved out certain situations/
cases in which the preliminary enquiry is held to be permissible/
desirable before registering/lodging of an FIR. It is further
observed that if the information received does not disclose a
cognizable offence but indicates the necessity for an inquiry, a
preliminary enquiry may be conducted to ascertain whether
cognizable offence is disclosed or not. It is observed that as to
what type and in which cases the preliminary enquiry is to be
conducted will depend upon the facts and circumstances of each
case. As per the decision of this Court, the categories of cases in
which preliminary enquiry may be made are as under: (a)
Matrimonial disputes/family disputes; (b) Commercial offences;
(c) Medical negligence cases; (d) Corruption cases; (e) Cases
where there is abnormal delay/laches in initiating criminal
prosecution, for example, over 3 months' delay in reporting the
matter without satisfactorily explaining the reasons for delay.
These are only illustrations and not exhaustive of all conditions
which may warrant preliminary inquiry. [Para 8.1][720-A-G]
P. Sirajuddin v. State of Madras (1970) 1 SCC 595
: [1970] 3 SCR 931; Lalita Kumari v. Government of
Uttar Pradesh (2014) 2 SCC 1 : [2013] 14 SCR 713 -
relied on.
1.2 While expressing the need for a preliminary enquiry
before proceeding against public servants who are charged with
the allegation of corruption, it is observed in the case of P.
Sirajuddin that "before a public servant, whatever be his status,
is publicly charged with acts of dishonesty which amount to serious
misdemeanour or misconduct of indulging into corrupt practice
and a first information is lodged against him, there must be some
suitable preliminary enquiry into the allegations by a responsible
officer. The lodging of such a report against a person who is
occupying the top position in a department, even if baseless, would
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do incalculable harm not only to the officer in particular but to
the department he belonged to in general. If the Government
had set up a Vigilance and Anti-Corruption Department as was
done in the State of Madras and the said department was
entrusted with enquiries of this kind, no exception can be taken
to an enquiry by officers of this department". It is further observed
that "when such an enquiry is to be held for the purpose of finding
out whether criminal proceedings are to be initiated and the scope
thereof must be limited to the examination of persons who have
knowledge of the affairs of the person against whom the
allegations are made and documents bearing on the same to find
out whether there is a prima facie evidence of guilt of the officer,
thereafter, the ordinary law of the land must take its course and
further enquiry be proceeded with in terms of the Code of
Criminal Procedure by lodging a first information report".
[Para 9][722-E-G; 723-A]
2. An enquiry at pre-FIR stage is held to be permissible
and not only permissible but desirable, more particularly in cases
where the allegations are of misconduct of corrupt practice
acquiring the assets/properties disproportionate to his known
sources of income. After the enquiry/enquiry at pre-registration
of FIR stage/preliminary enquiry, if, on the basis of the material
collected during such enquiry, it is found that the complaint is
vexatious and/or there is no substance at all in the complaint, the
FIR shall not be lodged. However, if the material discloses prima
facie a commission of the offence alleged, the FIR will be lodged
and the criminal proceedings will be put in motion and the further
investigation will be carried out in terms of the Code of Criminal
Procedure. Therefore, such a preliminary enquiry would be
permissible only to ascertain whether cognizable offence is
disclosed or not and only thereafter FIR would be registered.
[Para 9.1][723-B-D]
3. Even as held by this Court in the case of Superintendent
of Police, CBI v. Tapan Kumar Singh, a GD entry recording the
information by the informant disclosing the commission of a
cognizable offence can be treated as FIR in a given case and the
police has the power and jurisdiction to investigate the same.
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However, in an appropriate case, such as allegations of
misconduct of corrupt practice by a public servant, before lodging
the first information report and further conducting the
investigation, if the preliminary enquiry is conducted to ascertain
whether a cognizable offence is disclosed or not, no fault can be
found. Even at the stage of registering the FIR, what is required
to be considered is whether the information given discloses the
commission of a cognizable offence and the information so lodged
must provide a basis for the police officer to suspect the
commission of a cognizable offence. At this stage, it is enough if
the police officer on the basis of the information given suspects
the commission of a cognizable offence, and not that he must be
convinced or satisfied that a cognizable offence has been
committed. Despite the proposition of law laid down by this Court
in catena of decisions that at the stage of lodging the first
information report, the police officer need not be satisfied or
convinced that a cognizable offence has been committed,
considering the observations made by this Court in the case of P.
Sirajuddin and considering the observations by this Court in the
case of Lalita Kumari before lodging the FIR, an enquiry is held
and/or conducted after following the procedure as per
Maharashtra State Anti-corruption & Prohibition Intelligence
Bureau Manual, it cannot be said that the same is illegal and/or
the police officer, Anti-corruption Bureau has no jurisdiction and/
or authority and/or power at all to conduct such an enquiry at
pre-registration of FIR stage. [Para 9.2][723-E-H; 724-A-B]
Superintendent of Police,CBI v. Tapan Kumar Singh
(2003) 6 SCC 175 : [2003] 3 SCR 485 - relied on.
4. In the present case, the office of the Director General,
ACB, Maharashtra State, Mumbai had received a complaint
against the appellant and his three brothers, wherein various
allegations have been made against the appellant with regard to
accumulating the assets disproportionate to his known sources
of income. At that time, the appellant was a Member and President
of the Municipal Council, Katol, District Nagpur. On the basis of
the said complaint, the Superintendent of Police, Anti-corruption
Bureau, Nagpur initiated a discrete enquiry against the appellant
with regard to the allegations in the complaint through the officers
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working under him. After conducting a discrete enquiry, report
dated 27.2.2020 has been submitted to the Superintendent of
Police, ACB, Nagpur. After scrutiny of the said report, the same
has been forwarded to the Director General of Police, ACB. After
considering the report, the Director General of Police, ACB had
directed the Superintendent of Police who in turn had directed
the Police Inspector, ACB, Nagpur to conduct an 'open enquiry'
and during the course of conducting an 'open enquiry', the
appellant against whom the allegations are made of accumulating
the assets disproportionate to his known sources of income, which
can be said to be an offence under Section 13(1)(e) of the PC Act,
has been served with the impugned notice, impugned before the
High Court. A detailed procedure is provided under the
Maharashtra State Anti-corruption & Prohibition Intelligence
Bureau Manual of Instructions 1968, while conducting open
enquiries. Discrete enquiry is permissible as per para 14 of the
said Manual and the 'open enquiry' is permissible as per para 15
of the said Manual. While conducting open enquiries, the enquiry
officer who is conducting the 'open enquiry' is required to follow
the following instructions: As soon as an application or information
is received by him for making an open enquiry, it should be
entered in the Enquiry Register and further developments
recorded in it from time to time. (For proforma of the Register
see Appendix XX). The number of the file allotted to the enquiry
should be cited in all references. The contents of the application
or information should be scrutinized carefully and various
allegations contained therein be noted seriatum. A plan of action
should be prepared, indicating therein - The Director's file
number and the date of receipt, Serial number of the allegation,
Allegations in brief, Name of witnesses to be examined or likely
to be examined, Papers or documents to be collected and
Probable date of completion of the enquiry. The plan of action
prepared by the Enquiry Officer as above, should be submitted
within seven days of the receipt of the enquiry to the Director.
The statement of the applicant should be recorded noting therein
all the circumstances within his knowledge with regard to the
allegations. The statements of all the witnesses whose names
might transpire during the examination of the applicant and also
of other witnesses, if any, should be recorded. All available
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documentary evidence in support of the allegation should be
collected. The statement of the person against whom the
allegations have been made should be recorded, giving him an
opportunity to explain each allegation against him. The application
should not be shown to him in any circumstances. The name of
the applicant should not be disclosed, if the applicant so expressly
desires. The statements of all persons cited in defence should
be recorded and the relevant documentary evidence collected.
After recording the evidence of both the sides and collecting the
necessary documents, the entire record should be examined to
formulate a definite opinion on each of the allegations. The papers
of enquiry, with the final report, should be submitted to the
Director. A copy of a 'Roznama' containing details showing the
day-to-day progress of the enquiry should be maintained as from
the date of the receipt of the application and attached to the papers
of enquiry and the final report. [Para 10][724-C-H; 725-A-H;
726-A-C]
5. After completing the enquiry, a final report along with
the papers of the enquiry is required to be sent to the Director
General, ACB. Even, while submitting the final report and the
papers of the enquiry, which are the points to be considered and/
or borne in mind are stated in para 16 of the Manual. Only
thereafter and if it is found that a cognizable offence is made out
and there is substance in the allegations, an FIR would be lodged
and further investigation will be carried out after following the
procedure as per the Code of Criminal Procedure. Therefore, a
fool proof safeguard and procedure is provided before lodging an
FIR/complaint before the Court against the public servant, who
is facing the allegations of corrupt practice. However, such an
enquiry would be conducted to ascertain whether a cognizable
offence is disclosed or not. Even at the stage of registering the
first information report, the police officer is not required to be
satisfied or convinced that a cognizable offence has been
committed. It is enough if the information discloses the
commission of a cognizable offence as the information only sets
in motion the investigative machinery, with a view to collect all
necessary evidence, and thereafter to take action in accordance
with law. Therefore, as such, holding such an enquiry, may be
discrete/open enquiry, at pre-registration of FIR stage in the case
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of allegation of corrupt practice of accumulating assets
disproportionate to his known sources of income, cannot be said
to be per se illegal. [Para 10.1][726-C-G]
6. The next question posed for the consideration of this
Court is, whether to what extent such an enquiry is permissible
and what would be the scope and ambit of such an enquiry. By the
impugned notice, impugned before the High Court, and during
the course of the 'open enquiry', the appellant has been called
upon to give his statement and he has been called upon to carry
along with the information on the points, which are referred for
the purpose of recording his statement. The information sought
on the aforesaid points is having a direct connection with the
allegations made against the appellant, namely, accumulating
assets disproportionate to his known sources of income. However,
such a notice, while conducting the 'open enquiry', 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 enquiry. 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 trial. Statement of the appellant
and the information so received during the course of discrete
enquiry shall be only for the purpose to satisfy and find out
whether an offence under Section 13(1)(e) of the PC Act, 1988 is
disclosed. Such a statement cannot be said to be confessional in
character, and 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. [Para 11][726-H; 727-A-D]
7. At this stage, it is required to be noted that in the present
case as such the appellant has produced the relevant documents
of some of the properties owned by him and the appellant has
joined the 'open enquiry'. It also appears from the counter filed
on behalf of the Anti-corruption Bureau that on the basis of the
information given by the appellant, letters have been issued to
various authorities/banks, seeking further and better particulars.
Partial statement of the appellant has already been recorded.
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However, such a statement/enquiry would be restricted only to
ascertain whether a cognizable offence is disclosed or not. Such
a statement cannot be said to be a confessional statement. After
having been satisfied and after conclusion of the enquiry and on
the basis of the material collected, if it is found that there is
substance in the allegations against the appellant and it discloses
a cognizable offence, FIR will be lodged and the investigating
agency has to collect the evidence/further evidence to
substantiate the allegations/charge of accumulating the assets
disproportionate to his known sources of income. However, if
during the enquiry at pre-registration of FIR stage, if the appellant
satisfies on production of the materials produced relating to his
known sources of income and the assets, in that case, no FIR will
be lodged and if he is not able to clarify his assets, vis-à-vis, known
sources of income, then the FIR will be lodged and he will be
subjected to trial. Therefore, as such, such an enquiry would be
to safeguard his interest also which may avoid further harassment
to him. [Para 12]
Case Law Reference
[2013] 14 SCR 713
relied on
Para 3.2
[1970] 3 SCR 931
relied on
Para 9
[2003] 3 SCR 485
relied on
Para 9.2
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 363 of 2021.
From the Judgment and Order dated 25.11.2020 of the High Court
of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition
No. 226 of 2020.
Subodh Dharamadhikari, Sr. Adv., Mohit P. Khajanchi, Mahesh
Dhatrak, Gaurav Agrawal, Advs. for the Appellant.
Raja Thakare, Sr. Adv., Rahul Chitnis, Sachin Patil, Aaditya A.
Pande, Geo Joseph, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 25.11.2020 passed by the High Court of Judicature at
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Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 226 of
2020, by which the High Court has dismissed the said writ petition
challenging notice dated 04.03.2020 issued by the Police Inspector, AntiCorruption Bureau, Nagpur, calling upon the appellant to personally remain
present before the investigating officer of the Anti-corruption Bureau,
Nagpur to give his statement in an 'open enquiry' in respect of the property
owned by him along with the information on the points stated in the said
notice, the appellant has preferred the present appeal.
2. That a complaint was received against the appellant in the office
of the Director General, Anti-corruption Bureau, Maharashtra State,
Mumbai on 7.2.2018, wherein various allegations have been made against
the appellant and his brothers with regard to accumulating the assets
disproportionate to his known sources of income. It appears that at that
time the appellant was a Member and President of Municipal Council,
Katol, District Nagpur. That in connection with the said complaint, Police
Inspector, Anti-corruption Bureau, Nagpur had issued a notice to the
appellant asking him to provide documents relating to his property, assets,
bank statements, income tax returns and asking the appellant to give
statement to the police.
3. Feeling aggrieved and dissatisfied with the said notice dated
04.03.2020 issued by the Police Inspector, Anti-Corruption Bureau,
Nagpur calling upon the appellant to personally remain present before
the investigating officer of the Anti-corruption Bureau, Nagpur to give
his statement in an 'open enquiry' in respect of the property owned by
him along with the information on the points stated in the said notice, the
appellant herein preferred Criminal Writ Petition No. 226 of 2020 before
the High Court.
3.1 It was submitted on behalf of the appellant that the Police
Inspector, Anti-Corruption Bureau, Nagpur has no power to issue the
said notice. It was also submitted that the said notice was issued in a
purported exercise of power under Section 160 Cr.P.C., however, Section
160 Cr.P.C. shall not be applicable at all as the appellant is not a witness
in the case. It was also the case on behalf of the appellant that there is
no statutory provision which would compel any body to give statement
to the police. It was also submitted that there is no FIR against the
appellant.
3.2 On the other hand, it was the case on behalf of the State that
the appellant has been called upon to give his statement in an 'open
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enquiry' which is in the nature of preliminary enquiry. It was the complaint
received by the Anti-Corruption Bureau, Nagpur regarding amassing of
huge properties by the appellant. It was submitted that such a preliminary
enquiry is permissible, as held by this Court in the case of Lalita Kumari
v. Government of Uttar Pradesh (2014) 2 SCC 1. Heavy reliance
was placed upon paragraphs 89, and 120 of the said decision. After
following the decision of this Court in the case of Lalita Kumari (supra),
the High Court has observed that a preliminary enquiry in order 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 offence would be
permissible. Thereafter, the High Court has further observed that as the
notice has been issued only for facilitating the purpose of preliminary
enquiry, it cannot be said to be bad in law. The High Court has further
observed that it is true that by such notice a person like the appellant
cannot be compelled to make his personal appearance before the officer
of the Anti-Corruption Bureau. However, the High Court has further
observed that not responding to such a notice, may be at the peril of the
noticee himself for the reason that the officer of the Anti-Corruption
Bureau may draw some adverse inference against the person not cooperating with the preliminary enquiry. For the aforesaid, the High Court
took into consideration Condition No. 16 of the State Anti-Corruption
Bureau Manual. By observing the above, the High Court, by the
impugned judgment and order has dismissed the said writ petition, which
has given rise to the present appeal.
4. Shri Subodh Dharmadhikari, learned Senior Advocate appearing
on behalf of the appellant has vehemently submitted that notice dated
04.03.2020 issued by the Anti-Corruption Bureau by which the appellant
has been directed to appear before the investigating officer, AntiCorruption Bureau, Nagpur and to make a statement in respect of the
property owned by him and to give information on the points stated in
the said notice has no statutory force.
4.1 It is submitted that the said notice has been issued in purported
exercise of power under Section 160 Cr.P.C. However, as the appellant
cannot be said to be a witness in the case, Section 160 Cr.P.C. shall not
be applicable at all. It is submitted that therefore notice dated 4.3.2020 is
beyond the scope and ambit of Section 160 Cr.P.C.
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4.2 It is further submitted that while dismissing the writ petition,
the High Court has materially erred in relying upon the decision of this
Court in the case of Lalita Kumari (supra).
4.3 It is further submitted that the High Court ought to have
appreciated that such a notice calling upon the appellant to give the
statement and more particularly on the points mentioned in the said notice
shall be hit by Article 20(3) and 21 of the Constitution of India. It is
further submitted that as such notice dated 4.3.2020 is for roving and
fishing enquiry which is not permissible under the law and as such it has
no statutory backing.
4.4 It is further submitted that the High Court has failed to
appreciate that notice dated 4.3.2020 is a clear example of political
vendetta and actuated by malice to harass the political opponent by the
ruling party.
4.5 It is further submitted by the learned counsel appearing on
behalf of the appellant that as such the reliance placed upon Condition
No. 16 of the State Anti-Corruption Bureau Manual has no statutory
force even as observed and held by this Court in the case of Lalita
Kumari (supra).
4.6 Making the above submissions, it is prayed to allow the present
appeal and quash and set aside the impugned judgment and order passed
by the High Court, as well as, impugned notice dated 4.3.2020 issued by
the Anti-Corruption Bureau, Nagpur.
5. While opposing the present appeal, Shri Raja Thakare, learned
Senior Advocate has vehemently submitted that the notice issued by the
Police Inspector, Anti-Corruption Bureau, Nagpur is absolutely in
consonance with the ACB Manual which permits the discrete enquiries
and open enquiries, so as to find out the veracity of the allegations in the
complaint. It is submitted that even the same is also permissible as per
the decision of this Court in the case of Lalita Kumari (supra).
5.1 It is submitted that a complaint was received in the office of
the Director General, Anti-Corruption Bureau, Maharashtra State,
Mumbai, wherein various allegations have been made against the
appellant with regard to accumulating the assets disproportionate to his
known sources of income. That on the basis of the said complaint, the
Superintendent of Police, Anti-Corruption Bureau, Nagpur initiated a
discrete enquiry against the appellant with regard to the allegations in
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the complaint through the officers working under him. Accordingly, a
discrete enquiry was conducted and on 27.02.2020, a report was
submitted to the Superintendent of Police, Anti-Corruption Bureau,
Nagpur. It is submitted that after scrutiny of the said report, the
Superintendent of Police, Anti-Corruption Bureau, Nagpur forwarded
the same to the Director General of Police, Anti-Corruption Bureau,
Maharashtra, Mumbai. That the Director General of Police, AntiCorruption Bureau, Maharashtra vide his letter dated 28.02.2020 directed
the Superintendent of Police, Anti-Corruption Bureau, Nagpur who in
turn directed the Police Inspector, Anti-Corruption Bureau, Nagpur to
conduct an 'open enquiry'.
5.2 It is submitted that the said 'open enquiry' is to find out if an
offence under Section 13(e) of the Prevention of Corruption Act is
disclosed. It is submitted that Section 13(e) of the PC Act makes it
apparent that the person against whom a complaint is received has to
satisfy the investigating agency whether his assets are in consonance
with his known sources of income and accountable. The information
regarding assets may be provided by the source informant or can be
detected during the discrete enquiry, however, the sources of his income
would be within exclusive knowledge of the person against whom the
complaint or information is received. It is submitted that therefore the
'open enquiry' is warranted before the registration of an offence. It is
submitted that accordingly the Superintendent of Police, Anti-Corruption
Bureau, Nagpur directed the Police Inspector, Anti-Corruption Bureau,
Nagpur to conduct an 'open enquiry' with regard to the allegations levelled
in the complaint.
5.3 It is submitted that the notice has been issued as per the
principals of natural justice to facilitate the appellant to clarify regarding
his assets and known sources of income, which would enable the
investigating officer to ascertain whether cognizable offence is disclosed
or not. It is submitted that however Section 160 Cr.P.C. has been
inadvertently mentioned in the said notice.
5.4 It is further submitted that, as such, despite number of notices
issued, the appellant is not co-operating with the investigating agency
and is not appearing for giving his statement on the points mentioned in
the notice, on one pretext or the other. It is submitted that, as such, the
appellant did join the 'open enquiry' and ask for time to collect details
and produce the same. It is submitted that even on 7.1.2021, the appellant
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attended the office of the Anti-Corruption Bureau, Nagpur with relevant
documents of some of the properties owned by him and his partial
statement was recorded and his statement remained incomplete. But
the appellant avoided to give details of his assets, liabilities and prominent
expenditures and therefore no conclusion could be drawn. It is submitted
therefore that once the appellant having presented himself before the
investigating authority on 7.1.2021 and his partial statement having been
recorded, the issue whether the said notice can compel the appellant to
appear in person before the officers of the Anti-Corruption Bureau,
Nagpur no longer survives for consideration by this Court.
5.5 It is submitted that, in fact, the appellant has been summoned
for a preliminary enquiry only to ascertain whether cognizable offence
is disclosed or not. If the preliminary enquiry discloses the cognizable
offence, then a first information report will be registered against the
appellant. However, that stage has not been reached as the appellant
has only partially recorded his statement before the investigating officer
and the preliminary enquiry has remained un-concluded.
5.6 It is submitted that in the discrete enquiry, the investigating
authority has found, prima facie, substance in the allegations with regard
to the complaint received and therefore it was decided to conduct an
'open enquiry'. It is submitted that the decision with regard to discrete
enquiry as well as an open enquiry with regard to allegations against the
appellant was taken as per the provisions of the Manual of the AntiCorruption Bureau, Maharashtra. Heavy reliance is placed on Chapter
IV of the Anti-Corruption Manual Rules, which provides for conducting
the investigation including discrete enquiry and 'open enquiry'.
5.7 It is further submitted that the enquiry is being conducted to
verify the truthfulness of the allegations with regard to the accumulation
of assets disproportionate to the known sources of income of the
appellant. Unless the relevant property details of the appellant are made
available to the authorities, the investigating authority will not be able to
ascertain as to whether the assets of the appellants are disproportionate
to his known sources of income or not. The very nature of the enquiry in
respect of offence under Section 13(e) of the PC Act presupposes that
it is the person against whom the allegations are made has to explain the
details of his property qua his known sources of income. It is submitted
that therefore the enquiry initiated should reach to its logical conclusion.
It is submitted that at the time of culmination of the inquiry, a decision
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will be taken on merits and on the basis of the evidence/material collected
during the course of 'open enquiry', it will be considered whether a
cognizable offence is made out or not. It is submitted that if no substance
is found during the 'open enquiry', the Anti-Corruption Bureau, Nagpur
may close the enquiry without any further action.
5.8 It is further submitted that calling upon the appellant to disclose
his properties, assets etc. cannot be said to be in violation of Articles
20(3) and 21 of the Constitution of India, as alleged. It is submitted to
invoke the constitutional right under Article 20(3), an accusation against
him must exist. It is submitted that as on date no FIR has been registered
against the appellant and the investigating authorities are only conducting
the preliminary enquiry. It is submitted that it cannot be said that the said
notice seeks to make a roving inquiry with regard to the assets and
personal details of the appellant or that it is vague.
5.9 Making the above submissions, it is prayed to dismiss the
present appeal.
6. We have heard the learned counsel for the respective parties
at length.
At the outset, it is required to be noted that what was challenged
before the High Court was notice issued by the Police Inspector, AntiCorruption Bureau, Nagpur, by which the appellant has been called upon
to give his statement in respect of the properties owned by him, for the
purpose of enquiring the complaint against him, alleging accumulating
the assets disproportionate to his known sources of income which, as
such, was/is at pre-FIR stage. By the aforesaid notice dated 4.3.2020,
the appellant has been called upon to carry along with the information on
the following aspects for the purpose of recording his statement:
1)
Record in respect of ancestral and self-acquired property
in your name, for example, Registered Deed, Construction
Licence, Receipts relating to tax, Sale Deed of Agricultural
Land, 7/12 Extract and Mutation Entries, etc.
2)
Details of ancestral and self-acquired gold coins and
jewellery, likewise sale and purchase of vehicle.
3)
Passbooks, Certificates, L.I.C., Shares/Debentures
Certificates, etc. in respect of investments at bank, insurance
and others in your name and in the name of your family
members.
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4)
Details of documentary evidence in respect of loan
borrowed by you.
5)
Proofs and income tax return in respect of your income
other than your remuneration.
6)
Details of expenditure incurred by you in respect of
pilgrimages, functions, hospitals, foreign tours, etc.
7)
Information regarding remuneration and allowances
received by you.
The High Court, by the impugned judgment and order, has refused
to quash the said notice mainly relying upon the decision of this Court in
the case of Lalita Kumari (supra).
7. Therefore, the short question which is posed for the
consideration of this Court is, whether such an enquiry at pre-FIR stage
would be legal and to what extent such an enquiry is permissible?
7.1 While answering the aforesaid two questions and permissibility
of the enquiry at pre-FIR stage, it is required to be noted that on the
basis of the complaint against him, the appellant is facing various
allegations with regard to accumulating the assets disproportionate to
his known sources of income, when the appellant was a member and
the President of the Municipal Council, Katol, District Nagpur - a public
servant. At that stage and while considering the veracity of the allegation
of accumulating the assets disproportionate to his known sources of
income, the investigating agency has thought it fit to hold an 'open enquiry'
and during the course of such 'open enquiry' the appellant has been
called upon to make his statement along with the information on the
points, referred to hereinabove. Whether, such an enquiry, which can be
said to be a preliminary enquiry, is permissible under the Maharashtra
State Anti-Corruption Manual shall be dealt with and considered
hereinbelow.
8. However, whether in a case of a complaint against a public
servant regarding accumulating the assets disproportionate to his known
sources of income, which can be said to be an offence under Section
13(1)(e) of the Prevention of Corruption Act, 1988, an enquiry at preFIR stage is permissible or not and/or it is desirable or not, if any decision
is required, the same is governed by the decision of this Court in the
case of Lalita Kumari (supra).
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8.1 While considering the larger question, whether police is duty
bound to register an FIR and/or it is mandatory for registration of FIR on
receipt of information disclosing a cognizable offence and whether it is
mandatory or the police officer has option, discretion or latitude of
conducting preliminary enquiry before registering FIR, this Court in the
case of Lalita Kumari (supra) has observed that it is mandatory to
register an FIR on receipt of information disclosing a cognizable offence
and it is the general rule. However, while holding so, this Court has also
considered the situations/cases in which preliminary enquiry is permissible/
desirable. While holding that the registration of FIR is mandatory under
Section 154, if the information discloses commission of a cognizable
offence and no preliminary enquiry is permissible in such a situation and
the same is the general rule and must be strictly complied with, this
Court has carved out certain situations/cases in which the preliminary
enquiry is held to be permissible/desirable before registering/lodging of
an FIR.