THE STATE OF CHATTISGARH & ANR. VS. AMAN KUMAR SINGH & ORS. ETC. ETC.
THE STATE OF CHATTISGARH & ANR. VS. AMAN KUMAR SINGH & ORS. ETC. ETC.
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS………………………… OF 2023
(@SLP (CRL.) NOS.1703-1705 OF 2022)
THE STATE OF CHATTISGARH & ANR. … APPELLANTS
VS.
AMAN KUMAR SINGH & ORS. ETC. ETC. … RESPONDENTS
WITH
CRIMINAL APPEAL NOS………………………. OF 2023
(@SLP(CRL.) NOS.1769-1770 OF 2022)
UCHIT SHARMA … APPELLANT
VS.
THE STATE OF CHATTISGARH
& ORS. ETC. ETC. … RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
Leave granted.
2. These 5 (five) appeals are at the instance of, inter alia, the
State of Chhattisgarh (hereafter ‘the State’, for short) and Sri Uchit
Sharma (hereafter ‘US’, for short). The appellants call in question a
2
common judgment and order dated 10th January, 2022 passed by
the Chhattisgarh High Court at Bilaspur, whereby 3 (three) writ
petitions [WPCR 88 of 2020, WPCR 154 of 2020 and WPCR 206 of
2020] were disposed of. WPCR 88 of 2020, presented by Sri Aman
Singh (hereafter ‘AS’, for short), was allowed by quashing FIR No.
9/2020 dated 25th February, 2020 (hereafter ‘the FIR”, for short)
under section 13(1)(b) and (2), Prevention of Corruption Act, 1988
(hereafter ‘P.C. Act”, for short) read with section 120B, Indian Penal
Code (hereafter ‘IPC”, for short), registered by the Economic
Offences Wing/Anti-Corruption Bureau of the State. WPCR 154 of
2020, instituted by the wife of AS, Smt. Yasmin Singh (hereafter
‘YS’, for short), was partly allowed. The spouses were the joint
petitioners in WPCR 206 of 2020, which was also allowed.
3. A complaint dated 11th October, 2019 was lodged by US in the
office of the Chief Minister of the State. It was alleged therein that
AS [an Indian Revenue Service (IRS) officer and the former Principal
Secretary to the erstwhile Chief Minister of Chhattisgarh], his wife
YS, [former consultant to the Govt. of Chhattisgarh, who had
worked on contract as the Director, Communication and Capacity
Development Unit (CCDU), Department of Public Health
Engineering, Govt. of Chhattisgarh from 14th November, 2005 to 31st
March, 2015, and as Director, ICE & Capacity Building, Dept. of
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Panchayat & Rural Development, Govt. of Chhattisgarh from 1st
April, 2015 to 10th December, 2018] and his family were involved in
corruption and money laundering, and that he also held assets
which are disproportionate to his known sources of income.
4. Upon the complaint being received, the Chief Minister by a
handwritten order directed the Chief Secretary of the State to have
the complaint enquired into by the Economic Offences Wing (EOW).
Although, the date “14th OCT, 2019” appears just above the
handwritten order of the Chief Minister, it is not too clear whether
he made such order on 14th October, 2019 or on 15th October,
2019.
5. Be that as it may, vide a forwarding letter dated 21st
October, 2019, the complaint was forwarded by the General
Administration Department of the State (hereafter ‘GAD’, for short)
to the Economic Offences Wing/Anti-Corruption Bureau
(hereafter ‘ACB/ EOW', for short) for the purpose of conducting
inquiry into the allegations leveled therein. Acting in furtherance of
the said letter dated 21st October, 2019, the ACB/EOW registered a
preliminary inquiry bearing no. P.E.35/2019.
6. Prior to these developments, YS had invoked the writ
jurisdiction of the High Court by instituting a writ petition [W.P.
(S)6521/2019], essentially questioning a departmental inquiry
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initiated against her. She had prayed for quashing and/or setting
aside of an order dated 10th May, 2019 whereby the GAD had
instituted an inquiry against her. Such inquiry appears to have been
initiated on the basis of a complaint dated 12th April, 2019 lodged by
one Vikas Tiwari (spokesperson of the Chhattisgarh unit of the
Indian National Congress party). With the initiation of P.E.35/2019,
in terms of the letter dated 21st October, 2019, YS filed an interim
application (I.A.04/2020) seeking a stay thereof. By an order dated
16th January, 2020, the High Court directed the State not to take
any steps to her prejudice pursuant to the letter dated 21st
October, 2019. The order of 16th January, 2020 refers to, inter
alia, an earlier order dated 21st October, 2019 which, however, is
not on record.
7. The letter dated 21st October, 2019 of the GAD, referred to
above, was also challenged by AS by instituting a writ petition
[WPCR 88/2020] before the High Court on 29th January, 2020. In
such writ petition, AS urged the court to pass an order for
production of the entire records pertaining to the letter dated 21st
October, 2019 for its perusal, for quashing the said letter as well as
any consequential step/action taken by the State including
P.E.No.35/2019.
5
8. During the pendency of WPCR 88/2020, the FIR was
registered against AS and YS.
9. Within a few days of registration of the FIR, on 28th February,
2020 to be precise, AS applied for an amendment of WPCR 88/2020
seeking to mount a challenge to the FIR. He had also applied for
interim relief for stay of effect/operation of the FIR.
10. YS too, on 2nd March, 2020, instituted WPCR 154/2020 seeking
an order, inter alia, for quashing of the FIR.
11. By an order dated 28th February, 2020, the High Court allowed
the application for amendment and also directed that no coercive
steps be taken against AS till the next date of hearing.
12. On 15th April, 2020, WPCR 206/2020 was jointly instituted by
AS and YS seeking appropriate order for listing of WPCR
88/2020 and WPCR 154/2020 for final hearing immediately upon
resumption of normal functioning of the Court (which was then
curtailed due to the pandemic caused by Covid-19) and also for an
order declaring the action of the ACB/EOW in directing HDFC Bank
Ltd., respondent no.5, to put a hold on the funds in the salary
account of AS, as void and illegal.
13. We need not at this stage refer in detail to the intervening
events of issuance of notice to AS to join the investigation as well as
interim orders passed on the writ petitions from time to time.
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Suffice it to note, in an order dated 6th September, 2021, the High
Court observed that there was a dispute with regard to the income
of AS and YS and the ACB/EOW was called upon to produce the case
diary as well as figures in tabulated form showing income and
expenditure for perusal by the Court whether there is
disproportionate income or not.
14. Faced with such an order, the State filed an application
seeking exemption to produce the case diary and the figures in
tabulated form as well as applied for vacation of an earlier order
dated 28th February, 2020 whereby the ACB/EOW was restrained
from taking coercive steps against AS. The fate of these applications
does not clearly appear from the records. However, for the reasons
recorded in the impugned judgment and order dated 10th
January, 2022, the High Court while allowing WPCR 88/2020
quashed the FIR. In view of the FIR having been quashed, the High
Court held that relief sought by YS in WPCR 154/ 2020 in relation to
the FIR had lost its significance. However, the Court rejected the
prayer of YS to prosecute US, the original complainant and J.P.
Kujur, the Investigation Officer, under section 211, IPC. WPCR
154/2020, thus, stood partly allowed. Insofar as WPCR 206/2020 is
concerned, the Court made the following directions in paragraph 70:
“70. Since this Court while hearing WPCR No. 88 of 2020
has already quashed the FIR bearing No. 09/2020 registered
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against the petitioners at Police Station- EOW/ACB, DistrictRaipur (C.G.), therefore, the relief sought in this petition has
lost its significance and the bank account No. 50100 28338
9868 of petitioner No. 1 shall inoperative (sic) after
quashing the FIR in WPCR No. 88 of 2020, therefore, no
further direction is required to be passed.”
15. Since, the High Court has quashed the FIR and we are called
upon to examine the legality and propriety of the impugned
judgment, we propose to refer to the material portions of the FIR
after noting the rival contentions.
16. Mr. Sibal, learned senior counsel appearing in support of the
appeals preferred by the State, contended that the High Court
committed gross error of law in quashing the FIR by transgressing
the legal bounds for quashing a first information report. Placing
reliance on the decision of this Court in CBI & Ors. Vs. Tapan
Kumar Singh1
, he contended that a first information report is not
an encyclopedia which must disclose all facts and details relating to
the offence reported; what is of significance is that the information
given must disclose the commission of a cognizable offence and the
information so lodged must provide the basis for the police to
suspect the commission of a cognizable offence. At the stage of
registration of a first information report, the police officer on the
basis of the information given has to suspect the commission of a
cognizable offence and not that he must be convinced or satisfied
1 (2003) 6 SCC 175
8
that a cognizable offence has been committed. If he has reasons to
suspect on the basis of the information received that a cognizable
offence may have been committed, he is bound to record the
information and investigate, without it being necessary for him to
satisfy himself about the truthfulness of the information.
17. According to Mr. Sibal, when a first information report could be
lodged on the basis of suspicion, the High Court in the present case
erred in law in quashing the FIR on the ground that it was based on
“probabilities”. Criticizing the impugned judgment as wanting in
appreciation of the aforesaid basic principle, he urged that the High
Court overstepped its limits.
18. Mr. Sibal also contended that in the present case, AS
challenged the FIR a few days after the same was registered on 25th
February, 2020 and obtained an order from the High Court to the
effect that no coercive steps be taken against him. Armed with such
an order, AS did not join the investigation despite a notice having
been issued. There was no order staying the investigation. Even if
the investigation had proceeded, there was no imminent fear of
arrest. If indeed, AS and YS do have papers and documents to
satisfactorily account for the pecuniary resources and property and
that they do not possess assets disproportionate to their known
sources of income, such papers and documents could have been
9
produced before the Investigating Officer thereby enabling him to
hold that there is no substance in the complaint lodged by US, and
then to file an appropriate closure report before the concerned court
to be considered in accordance with Law. However, the
Investigating Officer could not proceed with the investigation
effectively and meaningfully in view of the restraining orders passed
by the High Court resulting in the investigative process being
aborted.
19. Our attention was next invited by Mr. Sibal to the decisions of
this Court in State of Uttar Pradesh Vs. Naresh & Ors.2 and
Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra &
Ors.3
, in support of the contention that when an investigation by
the police is in progress, the courts should not go into the merits of
the allegations in the FIR; on the contrary, the police must be
permitted to complete the investigation. It was also contended that
if after investigation the Investigating Officer does not find any
substance in the complaint/first information report, he is obliged to
file appropriate closure report before the concerned court for its due
consideration in accordance with law; however, it would be
premature to pronounce any conclusion that the first information
report does not disclose any cognizable offence based on hazy facts.
2 (2011) 4 SCC 324
3 2021 SCC OnLine SC 315
10
20. Mr. Sibal, thus, prayed that the impugned judgment and order
of the High Court be set aside and investigation into the FIR be
permitted to be taken to its logical conclusion.
21. Mr. Sanjay Hegde, learned senior counsel for the other
appellant, i.e., US, contended that the High Court clearly applied a
wrong test while quashing the FIR. According to him, the test of a
prima-facie or probable case is only required to be shown at the
time of framing of charge; however, for an investigation to proceed
on the basis of a first information report, all that is required to be
shown is that the contents of the complaint/first information report,
when taken at face value, make out an offence.
22. It was further contended by Mr. Hegde that the High Court
conducted a mini-trial while arriving at a conclusion that no offence
against AS and YS has been made out in the FIR which, this Court
has repeatedly held, cannot be conducted in proceedings for
quashing of a first information report. At the stage of considering a
prayer for quashing of first information report, the probable defence
of the accused cannot be considered.
23. Inviting our attention to the interim order dated 6th September,
2021 passed by the High Court, Mr. Hegde contended that such an
exercise could not have been undertaken by the Court in exercise of
its jurisdiction under Article 226 of the Constitution.
11
24. Referring to the decision of this Court in Central Bureau of
Investigation & Anr. Vs. Thommandru Hannah Vijayalakshmi
@ T.H. Vijayalakshmi & Anr.4
, Mr. Hegde submitted that a similar
exercise that was undertaken by the relevant high court was held to
be impermissible by this Court.
25. The decisions of this Court in R.P. Kapur Vs. State of Punjab5
and State of Haryana Vs. Bhajan Lal and Ors.6 were next cited
for highlighting the categories of cases where inherent jurisdiction
can and should be exercised by the high courts to quash
proceedings; however, having regard to the facts and circumstances
of the case presented before the High Court by AS and YS, Mr.
Hegde contended that the court ought to have declined interference.
26. Mr. Hegde further relied on the decision of this Court in
Rajesh Bajaj Vs. State (NCT of Delhi)]7
for the proposition that
if the factual foundation for the offence has been laid in the
complaint, the court should not hasten to quash criminal
proceedings during investigation stage merely on the premise that
one or two ingredients have not been stated with details. According
to him, quashing of a first information report is a step which is
4 (2021) SCC OnLine SC 923
5 (1960) 3 SCR 388
6 1992 SUPP. (1) SCC 335
7 (1999) 3 SCC 259
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permitted only in extremely rare cases such as, the information in
the complaint must be so bereft of even the basic facts which are
absolutely necessary for making out the offence. The FIR, in the
present case, does contain definite particulars making out the
offences complained of. That apart, the preliminary inquiry carried
out before registration of the FIR has revealed disproportionate
assets to the tune of 20% of the income of AS; hence, it was not an
appropriate case where the power to quash the FIR should have
been exercised.
27. While concluding, Mr. Hegde submitted that the High Court
having travelled beyond the well-settled parameters of exercise of
jurisdiction under Article 226 of the Constitution, the impugned
judgment and order merits to be set aside.
28. Mr. Mahesh Jethmalani, learned senior counsel appearing for
AS and YS, opposed the appeals. Reiterating the contentions that
found favour with the High Court, he contended that the High Court
rightly concluded that investigation of the FIR, which did not prima
facie disclose commission of any cognizable offence by either AS or
YS, would be nothing but an abuse of the process of law and
compelling AS and YS to join the investigation would amount to
undue and unnecessary harassment.
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29. By referring to the facts preceding registration of the FIR, Mr.
Jethmalani sought to impress us that ever since the political
dispensation underwent a change in the State of Chhattisgarh, AS
and YS have been the target of the new dispensation. Misusing the
police machinery, no stone has been left unturned to falsely
implicate AS and YS. Initially a departmental inquiry was initiated
against YS vide an order dated 10th May, 2019 and no sooner had
the High Court by an order dated 21st October, 2019 granted interim
protection to YS, further action was taken to initiate a preliminary
inquiry against AS and YS on 11th November, 2009. That apart,
quite mischievously, the FIR was suddenly registered during the
pendency of WPCR 88/2020 to render the same infructuous.
30. It was thereafter contended by Mr. Jethmalani that a bare
perusal of the FIR would reveal non-disclosure of the ‘check period’
which is a sine qua non in a case of disproportionate assets.
Further, the FIR did not disclose the basic ingredients of establishing
an offence under section 13(1)(b) read with section 13(2) of the
P.C. Act. The FIR also did not disclose the extent of alleged
investment either in figures or in percentage.
31. Referring to the decision in T.H. Vijayalakshmi (supra), it
was Mr. Jethmalani’s endeavor to show that the investigating
agency in that case had set out/specified the extent of
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disproportionality in a tabular form, in rupees and percentage, in
the first information report therein. The High Court, therefore, was
not in error when it required the State to produce the case diary as
well as figures in tabulated form showing income and expenditure
for perusal by the Court by its interim order dated 6th September,
2021.
32. Mr. Jethmalani further urged that no material being there to
justify registration of the FIR is borne out from the fact that the
State had applied for exemption from complying with the High
Court’s order dated 6th September, 2021.
33. It was next argued by Mr. Jethmalani that a first information
report based on sheer conjectural possibility of finding some more
assets in future is wholly impermissible. Law, according to him, is
well settled that a mere mention of the possibility will not entitle the
ACB/EOW of the State to lodge a first information report and
conduct investigation. Unless the first information report discloses
cognizable offence, such report based on possibilities would become
a tool of witch hunting and consequently harassment, which would
be a clear violation of Article 21 of the Constitution. It was also
argued that there is a casual allegation of a criminal conspiracy
between AS and YS without there being a whisper about its basic
elements.
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34. Mr. Jethmalani further contended that even if it is assumed
that 2004 to 2018 is the check period, it is clear that a fishing
inquiry is intended by the State and its officers with a view to
scandalize AS and YS.
35. It was also the contention of Mr. Jethmalani that there has
been no disproportionality at all, which would warrant an
investigation even into the allegations leveled by US in the
complaint, or for that matter, the FIR, and the High Court was right
in its interference to prevent abuse of the process of law.
36. The contention of the respondents that the High Court had
applied a ‘non-existent legal test’ was refuted by terming it as
entirely misleading. Passages from the impugned judgment were
referred to, to show how the High Court was right in returning the
finding that the FIR did not disclose any offence rendering it liable to
interdiction.
37. While concluding, Mr. Jethmalani contended that there was no
material to justify registration of the FIR and that there being no
‘legitimate prosecution’, the same has rightly been quashed and set
aside by the impugned judgment; hence, the appeals are liable to
be dismissed.
38. The High Court did not in the impugned judgment assign mala
fide as a ground for quashing the FIR. In course of hearing before
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us, Mr. Jethmalani attempted to build up a case of mala fide by
referring to how the incumbent Chief Minister perceived AS to be a
‘super CM’ and also that AS has become the victim of political
vendetta, being caught in the crossfire between the incumbent Chief
Minister and the former Chief Minister. Reference was made to
clause (7) of paragraph 102 of the decision in Bhajan Lal (supra),
where it was held that a first information report could be quashed
by the high courts “where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal
grudge”.
39. In his rejoinder, Mr. Hegde canvassed that there are no
pleadings to this effect in the writ petition filed before the High
Court and, therefore, a new case ought not to be allowed to be set
up de hors the pleadings. The immediate reaction of Mr. Jethmalani
was that the writ petitions are replete with allegations of mala fide,
which form the plinth for registration of the FIR as well as the
departmental inquiry against YS.
40. Before reserving judgment, we had permitted Mr. Jethmalani
to file short written notes of arguments within a week together with
17
a few other relevant documents which he intended to file though not
part of the pleadings before the High Court or this Court.
41. The written notes together with documents annexed thereto
marked as annexures R/1A to R/1K have been considered.
42. In Part 1 of the written notes, reference has been made to
Circular No. 29/2020 of the Central Bureau of Investigation
(hereafter ‘CBI’, for short) providing the methodology for registering
first information reports in cases of disproportionate assets and for
conducting investigation. The contention advanced is that the FIR,
in the present case, does not conform to the guidelines laid down by
the CBI in Circular No. 29/2020 (hereafter ‘CBI Circular’, for short).
Part II centers around the contention that the FIR contains several
statements styled as facts, which were false to the knowledge of the
ACB/EOW of the State. The third and final part is dedicated to
“fabrications and manipulations” in the FIR which were the result of
political vendetta against AS, who was the Principal Secretary to the
Chief Minister in the previous regime.
43. We ought to place on record that little over a week of
reserving judgment, on 20th January, 2023 to be precise, Mr. Vikas
Singh, learned senior counsel mentioned the criminal appeals and
prayed for recall of the order reserving judgment on the ground that
an application for directions was in the process of being filed by AS
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and YS and that the same ought to be considered before the
judgment on these appeals is pronounced. Orally, we permitted the
application to be filed for being taken into consideration at an
appropriate time.
44. The application, which has since been filed on 20th January,
2023, refers to certain newspaper reports and WhatsApp
messages/chats exchanged allegedly between important
functionaries of the Government of Chhattisgarh and based thereon
it has been the contention that there exists conclusive material in
public domain establishing that the FIR against AS and YS has been
registered at the behest of one Sri Anil Tuteja and other highranking public officials in the State, at the instance of the present
Chief Minister. Since the materials brought on record by such
application are sufficient to drive home the conclusion that political
vendetta is the real cause for registration of the FIR, to tarnish the
reputation of AS and YS, it has been urged that all the evidence
ought to be summoned by this Court for just disposal of the present
proceedings. Such application contains the following prayers:
“PRAYER
In the facts and circumstances stated hereinabove, this
Hon'ble Court may graciously be pleased to:
a) Direct to take on record the new facts and materials,
as has emerged from the news report dated 18.01.2023
(titled "The Chhattisgarh Files: Docs, Chats show how
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prime accused was himself 'managing' NAN scam
investigation, Baghel issued hitlist' to implicate Raman
Singh, others’) in the web news
portal www.opindia.com and direct further hearing in the
present case; and/or
b) Direct to summon the records pertaining to the
‘WhatsApp' Chats relating to the conspiracy to implicate
the Respondent Nos. 1 & 4 from the Enforcement
Directorate; and/or
c) Direct to summon the records of the Preliminary
Enquiry bearing No. 35 of 2019 initiated by the PetitionerState's EOW/ACB in respect to the complaint made by
Respondent No. 2 on 11.10.2019; and/or
d) Direct to tag the present special leave petition with
W.P. (Crl) No. 506 of 2021 titled 'Directorate of
Enforcement v. Anil Tuteja & Ors.’ Pending before this
Hon’ble Court; and/or
e) Pass such other or further order (s) as may be deemed
fit and appropriate by this Hon’ble Court in the facts and
circumstances of the present case.”
45. We have heard the parties, perused the materials on record,
and considered the decisions cited at the bar.
46. The High Court, upon perusal of the FIR and consideration of
the arguments advanced by the parties as well as the decisions
cited at the Bar, recorded in the impugned judgment, inter alia, as
follows: -
“49. From bare perusal of the FIR, the allegation of
disproportionate income is made out or not, it is
expedient for this Court to examine whether from bare
perusal of the contents of FIR, offence said to have been
committed is made out or not, then only the FIR can be
quashed by this Court. Therefore, whether the prima facie
case is made out or not, has to be seen. This Court in
foregoing paragraphs has extensively quoted the FIR,
20
which clearly demonstrates that the FIR is based on
probabilities with regard to disproportionate income. The
FIR is silent with regard to quantum of the
disproportionate income, which is the paramount factors
for involving any person in implicating any person for
commission of offence under Section 13(1)(b), 13(2) of
the Act, 1988. These basic ingredients are not reflected
from the bare perusal of the FIR.
***
56. The FIR further states that there is possibility of
having various properties in the name of the petitioner
and his wife. The FIR further states that there is
reasonable possibility that the petitioner has invested
himself for his wife and other dependent family members
and it was also stated that there is a possibility that a
huge amount of money is being deposited in the bank
account of his wife. The FIR nowhere discloses
commission of any offence with definite facts and figures.
The FIR is based upon probabilities. As per the Act, 1988,
it is for the prosecution to establish prima facie offence
under Section 13(1)(b) read with Section 13 (2) of the
Act, 1988 against Government servant by reflecting in the
FIR, which is initiation of prosecution, then only,
prosecution can be started to investigate the offence as
mentioned in the FIR. In absence of any specific
allegation made in the FIR, merely on probability, the
petitioner cannot be prosecuted. The FIR has been
registered on the basis of complaint made by one Uchit
Sharma. The allegation in the FIR that the petitioner has
not filed a single APR while being employed with the
Government of Chhattisgarh due to fear that his
disproportionate assets will get exposed. It may seriously
violate all the conduct rules of Government of India and
Chhattisgarh Civil Services (Conduct) Rules, 1965, but the
petitioner cannot be prosecuted for commission of offence
under Section 13(1)(b) read with Section 13(2) of the
Act, 1988 for non-submission of APR with the department.
The FIR is not disclosing the fact that even not disclosing
the APR with the Government what disproportionate
income, the petitioner has earned during the period from
2004 to 2018.”
47. Confined to what the High Court has held in the impugned
judgment and order, the short question that emerges for a decision
21
is whether the High Court was justified in its interference with the
FIR.
48. The additional question that we are called upon to answer in
view of the plea of mala fide raised by Mr. Jethmalani and the
contents of the application for directions filed on behalf of AS and YS
is, whether and to what extent would a court exercising power
under Article 226 of the Constitution or section 482 of the Code of
Criminal Procedures (hereafter ‘Cr. P.C.’, for short) be justified to
quash a first information report registered under section 13 of the
P.C. Act while the police embarks on an investigation against a
public servant particularly in view of what has been laid down in
clause (7) of paragraph 102 of the decision in Bhajan Lal (supra).
49. We preface our discussion, leading to the answers to the
above two questions, taking note of a dangerous and disquieting
trend that obviously disturbs us without end. Though it is the
preambular promise of the Constitution to secure social justice to
the people of India by striving to achieve equal distribution of
wealth, it is yet a distant dream. If not the main, one of the more
prominent hurdles for achieving progress in this field is undoubtedly
‘corruption’. Corruption is a malaise, the presence of which is all
pervading in every walk of life. It is not now limited to the spheres
of activities of governance; regrettably, responsible citizens say it
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has become a way of one’s life. Indeed, it is a matter of disgrace for
the entire community that not only on the one hand is there a
steady decline in steadfastly pursuing the lofty ideals which the
founding fathers of our Constitution had in mind, degradation of
moral values in society is rapidly on the rise on the other. Not much
debate is required to trace the root of corruption. ‘Greed’, regarded
in Hinduism as one of the seven sins, has been overpowering in its
impact. In fact, unsatiated greed for wealth has facilitated
corruption to develop like cancer. If the corrupt succeed in duping
the law enforcers, their success erodes even the fear of getting
caught. They tend to bask under a hubris that rules and regulations
are for humbler mortals and not them. To get caught, for them, is a
sin. Little wonder, outbreak of scams is commonly noticed. What is
more distressing is the investigations/inquiries that follow. More
often than not, these are botched and assume the proportion of
bigger scams than the scams themselves. However, should this
state of affairs be allowed to continue? Tracking down corrupt public
servants and punishing them appropriately is the mandate of the
P.C. Act. “We the people”, with the adoption of our Constitution, had
expected very high standards from people occupying positions of
trust and responsibility in line with the Constitutional ethos and
values. Regrettably, that has not been possible because, inter alia, a
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small section of individuals inducted in public service for ‘serving the
public’ appear to have kept private interest above anything else
and, in the process, amassed wealth not proportionate to their
known sources of income at the cost of the nation. Although an
appropriate legislation is in place to prevent the cancer of corruption
from growing and developing, wherefor maximum punishment by
way of imprisonment for ten years is stipulated, curbing it in
adequate measure, much less eradicating it, is not only elusive but
unthinkable in present times. Since there exists no magic wand as
in fairy tales, a swish of which could wipe out greed, the
Constitutional Courts owe a duty to the people of the nation to show
zero tolerance to corruption and come down heavily against the
perpetrators of the crime while at the same time saving those
innocent public servants, who unfortunately get entangled by men
of dubious conduct acting from behind the screen with ulterior
motives and/or to achieve vested interests. The task, no doubt, is
onerous but every effort ought to be made to achieve it by sifting
the grain from the chaff. We leave the discussion here with the
fervent hope of better times in future.
50. Insofar as the merits of the controversy is concerned, we must
necessarily begin with a reading of the relevant provisions of the
P.C. Act. “Public servant” is defined in section 2(c). It is not
24
disputed that AS as well as YS is comprehended within such
meaning. Section 13(1) of the P.C. Act defines “criminal
misconduct”. A public servant is said to commit the offence of
criminal misconduct if (a) he dishonestly or fraudulently
misappropriates or otherwise converts for his own use any property
entrusted to him or any property under his control as a public
servant or allows any other person so to do, or (b) he intentionally
enriches himself illicitly during the period of his office. Thus,
intentional enrichment illicitly by a public servant during the period
of his office is a criminal misconduct. There are two explanations in
section 13(1). The first explanation provides that a person shall be
presumed to have intentionally enriched himself illicitly if he or any
person on his behalf, is in possession of or has, at any time during
the period of his office, been in possession of pecuniary resources or
property disproportionate to his known sources of income which the
public servant cannot satisfactorily account for. The other
explanation defines “known sources of income” to mean income
received from any lawful sources. To attract this provision, the
officer sought to be proceeded against must be a public servant. He
must be found to be in possession of, by himself, or through any
person on his behalf, at any time during the period of his office,
pecuniary resources or property disproportionate to his known
25
sources of income. If he is unable to satisfactorily account for the
same, he shall be liable to be proceeded against for having
committed criminal misconduct and suitably punished and fined if
the charge is proved for such period, as provided in sub-section (2).
Undoubtedly, this is a presumptive finding but that finding is based
on three facts, viz. being a (i) public servant, (ii) if at any time
during the period of his office, he has been in possession, by himself
or through any person on his behalf, of pecuniary resources or
property disproportionate to his known sources of income, then (iii)
he is enjoined to satisfactorily account for the same. The offence of
criminal misconduct is committed by a public servant if (ii) is proved
and (iii) does not happen. Therefore, if a prosecution is launched
under sub-section (1) of section 13 of the P.C. Act and the
allegation is proved at the trial, the concerned public servant is
liable to punishment under sub-section (2) thereof.
51. The law of the land abhors any public servant to intentionally
enrich himself illicitly during the tenure of his service. Increase in
the assets of such a public servant tantamount to constitutionally
impermissible conduct and such conduct is liable to be put under the
scanner of the P.C. Act. The Constitution Bench of this Court in its
decision in Lalita Kumari Vs. Govt. of U.P.8
, inter alia, while
8 (2014) 2 SCC 1
26
observing that cases in which preliminary inquiry is to be conducted
would depend upon the facts and circumstances of each case, also
categorized cases (though not exhaustively) where preliminary
inquiry, before registration of a first information report, could be
conducted and included ‘corruption cases’ in such category. A
preliminary inquiry or probe, we believe, becomes indispensable in a
complaint of acquisition of disproportionate assets not only to
safeguard the interest of the accused public servant, if such
complaint were lodged with some malice, but also to appropriately
assess the quantum of disproportionate assets should there be
some substance in this complaint.
52. In regard to a case of the type under consideration,
particularly when the FIR has been registered pursuant to a
preliminary inquiry into the complaint of US and is at its nascent
stage, it is in course of an investigation that materials are required
to be collected and based on such requisite evidence of possession
of pecuniary resources or acquisition of assets or property
disproportionate to the known sources of income of the concerned
public servant that a police report under section 173(2), Cr. P.C.
could be laid. At the stage of conducting a preliminary inquiry,
exercise of investigative powers being barred, such an inquiry is
intended to facilitate the process of formation of opinion as to
27
whether a first information report at all is required to be registered.
During the tenure of his office under his employer, the public
servant might not have even been suspected of being in possession
of pecuniary resources or assets disproportionate to his known
sources of income. Such assets or resources might have been held
through somebody on his behalf. In such a scenario, it is indeed a
difficult task for the Government - the employer - because of its
impersonal character and the usual lethargy or indolence at
Government levels to connect the officer with the resources or
assets illicitly acquired. To weed out corrupt public servants, the
Government has to engage sincere and dedicated personnel for
collecting and collating the necessary material in this regard. If
there be no interventions, the investigation that is likely to follow in
terms of the Cr. P.C., could enable the investigating officer to collect
and collate the entire evidence establishing the essential links
between the public servant and the property or pecuniary resources
in dispute. Since snapping of any link in the chain of circumstances
could prove fatal to the whole exercise, it is of utmost necessity that
care and dexterity are not compromised.
53. It is in the light of section 13 of the P.C. Act and the above
principles that we need to read the FIR and the preceding complaint
28
to assess whether any cognizable offence is made out against AS
and, a fortiori, against YS, his wife.
54. The complaint that US lodged with the Chief Minister does
specifically allege that although AS came from a very humble
background, as evident from his Annual Property Return filed at the
time of joining IRS, “he has managed to amass disproportionate
assets of more than 2500 crores contrary to his legal sources of
income”. One could view it as a tall claim, which is thoroughly
unsubstantiated. However, it cannot be wished away because of the
revelations of the preliminary inquiry which led to registration of the
FIR and have formed part thereof. Although it is true that it is for
the prosecution to build up a case that AS, as a public servant,
amassed such wealth or even wealth of any lesser value that is
disproportionate to his known sources of income, and which could
not satisfactorily be accounted for by him, while it files the police
report, it does not seem to be a requirement of law when the FIR
was registered on 25th February, 2020 that facts and figures with
exactitude need to form part of a first information report.
55. Moving forward, it is found on perusal of the FIR that although
not specifically mentioned, 2004 to 2018 is the “check period”
during which AS and YS have acquired property disproportionate to
their known sources of income. There are certain calculations
29
projecting the quantum of money that both AS and YS received
towards salaries, interest and value for properties sold. Particulars
of immovable properties acquired by AS and YS at different
locations with particulars of “price” also find mention therein. It is
thereafter stated that in addition to these properties, there is
possibility of there being other properties in other places of the
country in the names of AS and YS. There are also references to
possible investments made by AS abroad, either in his own name or
in the names of his wife and dependent members. Deposits of
money in lakhs in the bank account of YS regularly have been
suspected to be receipt of consideration (profit) from investment of
big amounts. It is also revealed from the FIR that
Rs.1,01,83,869.00 during April, 2013 to July, 2016 and
Rs.75,55,058.00 during October, 2018 to November, 2019 were
deposited by Cargill India Pvt. Ltd. and Courtesan Consulting Private
Limited, respectively, in the bank account of YS and such financial
transactions involving huge amounts prima facie appeared to be
conspicuous requiring minute scrutiny. These, along with some
other disclosures relating to involvement of AS as promoter of a
‘memorial foundation’ and YS as partner of a firm, reveals the
following contents:
“***As per the information regarding properties exceeding
income, received in the inquiry, commission of a cognizable
30
offence appears prima facie. Keeping it in view,
investigation is required so that information may be
obtained regarding movable and immovable properties in
addition to the aforesaid properties. There is possibility that
information regarding not only shares, vehicles and jewelry
but also regarding Benami properties in the name of
relatives, may be obtained. The income received lawfully by
non-applicant Aman Singh and Yasmin Singh during their
tenure as public servant, from year 2014 to December,
2018, was found to be Rs. 3,33,71,290, in comparison to
which, it was found that immensely disproportionate
expenses have been made by non-applicant Aman Singh
during the said period in his name and in the name of his
wife and dependent members, which was prima facie found
to be an offence under Sections 13(1)B, 13(2) of the
Prevention of Corruption Act, 1988 as amended by
Amendment Act, 2018 and Section 120(B) of the Indian
Penal Code.”
56. It is true that the FIR could have been drafted better. Since a
first information report is the starting point for a long drawn
investigative process and such an investigation could be scuttled by
an accused taking advantage of inept drafting of such report, this is
an area where all the more care and dexterity is called for to
prevent many a thing. However, nothing significant turns on the
inept drafting of the FIR in this case since it does make out a case of
cognizable offence having been committed by AS and YS. Indeed, if
at all there are miscalculations arising out of arithmetical errors or
misdescription of properties not belonging to AS and YS, they
were/are free to point it out while joining the investigation. It is also
open to them to point out to the investigating officer that there has
been absolutely no suppression or non-disclosure of
31
properties/assets and also that no activity amounting to ‘criminal
misconduct’ had been committed by them. However, they chose to
challenge the FIR on the specious ground that the same did not
disclose a cognizable offence.
57. Based on our reading of the FIR, we are unable to appreciate
the reasons resting whereon the same has been quashed by the
High Court. The High Court was of the opinion that (i) the FIR
clearly demonstrates that the same “is based on probabilities with
regard to disproportionate income”, (ii) the FIR “is silent with regard
to the quantum of disproportionate income, which is the paramount
factors for involving any person in implicating any person for
commission of offence under Section 13(1)(b), 13(2) of the Act,
1988”, (iii) these “basic ingredients are not reflected from the bare
perusal of the FIR”, (iv) the “FIR nowhere discloses commission of
any offence with definite facts and figures” and (v) “offence under
Section 13(1)(b), 13(2) of the Act, 1988 is not made out”.
58. While deciding the challenge to the FIR, the High Court –
unwittingly, we presume – did not bear in mind the note of caution
in Bhajan Lal (supra) to the effect that the power of quashing a
criminal proceeding should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases; further that,
the court will not be justified in embarking upon an enquiry as to
32
the reliability or genuineness or otherwise of the allegations made in
the FIR or the complaint; and also that, the extraordinary or
inherent powers do not confer an arbitrary jurisdiction on the court
to act according to its whim or caprice.
59. It seems that such note of caution did not have the desired
effect in all cases resulting in this Court, in its subsequent decisions,
reemphasizing the need for the high courts to bear in mind the
settled principle of law that whenever its powers are invoked either
under Article 226 of the Constitution or section 482, Cr. P.C. for
quashing a first information report/complaint, the courts would not
be justified in embarking upon an enquiry as to the probability,
reliability or genuineness of the allegations made therein (emphasis
ours). We may, in this regard, profitably refer to the decision of this
Court while dealing with a case under the P.C. Act in State of
Maharashtra Vs. Ishwar Piraji Kalpatri9
.
60. Very strong reliance has been placed by Mr. Sibal on the
decision in Tapan Kumar Singh (supra). There, this Court ruled
that:
“20. *** The information given disclosing the commission
of a cognizable offence only sets in motion the
investigative machinery, with a view to collect all
necessary evidence, and thereafter to take action in
accordance with law. The true test is whether the
information furnished provides a reason to suspect the
commission of an offence, which the police officer
9 (1996) 1 SCC 542
33
concerned is empowered under Section 156 of the Code
to investigate. If it does, he has no option but to record
the information and proceed to investigate the case either
himself or depute any other competent officer to conduct
the investigation. The question as to whether the report is
true, whether it discloses full details regarding the
manner of occurrence, whether the accused is named,
and whether there is sufficient evidence to support the
allegations are all matters which are alien to the
consideration of the question whether the report discloses
the commission of a cognizable offence. Even if the
information does not give full details regarding these
matters, the investigating officer is not absolved of his
duty to investigate the case and discover the true facts, if
he can.”
61. Thus, it being the settled principle of law that when an
investigation is yet to start, there should be no scrutiny to what
extent the allegations in a first information report are probable,
reliable or genuine and also that a first information report can be
registered merely on suspicion, the High Court ought to have
realized that the FIR which, according to it, was based on
“probabilities” ought not to have been interdicted. Viewed through
the prism of gravity of allegations, a first information report based
on “probability” of a crime having been committed would obviously
be of a higher degree as compared to a first information report
lodged on a “mere suspicion” that a crime has been committed. The
High Court failed to bear in mind these principles and precisely did
what it was not supposed to do at this stage. We are, thus,
34
unhesitatingly of the view that the High Court was not justified in its
interference on the ground it did.
62. Mr. Hegde is also right in relying on the decisions in R.P.
Kapur (supra) and Bhajan Lal (supra) that the FIR in this case did
not fit into any of the categories for being quashed on the ground of
not disclosing a cognizable offence.
63. Borrowing the words of K.T. Thomas, J. (as His Lordship then
was), it can safely be concluded that in the present case the High
Court “sieved the complaint through a cullender of finest gauzes for
testing” the veracity of the alleged crime. This approach being
clearly impermissible at the stage of considering a challenge to a
first information report, we are of the considered opinion that the
judgment and order under challenge is indefensible.
64. We now move on to consider Circular No. 29/2020 dated 12th
November, 2020 issued by the CBI on the subject of investigation of
cases of Illicit Enrichment (possession of pecuniary resources or
property disproportionate to known sources of income) (hereafter
‘CBI Circular’, for short). Having perused the CBI Circular, what we
find is that the same provides the methodology to guide registration
of a first information report in relation to disproportionate assets
cases. To the written notes of arguments is annexed a circular dated
12th April, 2021, by which the State has clarified that the CBI’s
35
methodology would apply to the State’s ACB/EOW as well (because
the manual of the State’s ACB/EOW has not been notified) and also
that the CBI’s methodology will apply in respect of All India and
Central Govt. Service Officers. However, the contention on behalf of
AS and YS that the methodology provided in the CBI Circular has
been observed in the breach has failed to impress us. Evidently, the
FIR in the present case was registered on 25th February, 2020
whereas the CBI Circular was issued on 12th November, 2020,
almost 9 (nine) months after the FIR was registered, and adopted
by the State almost a year later. Since the CBI Circular was not in
existence on 25th February, 2020, the FIR in the present case cannot
be invalidated by reference to the CBI Circular. It is only just and
appropriate that the CBI Circular, having been adopted by the State,
would be required to be followed only in respect of registration of
first information reports pertaining to cases of acquisition of
disproportionate assets, post 12th April, 2021. We, therefore, see no
reason to invalidate the FIR for alleged breach of the CBI Circular.
65. We, thus, answer the first question by holding that the High
Court was not justified in its interference with the investigative
process and committed an error of law in quashing the FIR on the
grounds it did.
36
66. To answer the second question, the challenge to the FIR on
the ground that it is vitiated by mala fides is taken up for
consideration.
67. Allegations of ulterior motives at the behest of the political
dispensation in power in the State and direction given by the Chief
Minister to the Economic Offences Wing to conduct an inquiry, which
is per se violative of the law, are found in WPCR 88 of 2020 under
the heading ‘subject matter in brief’. Mirror images of such
allegations are also found under the heading ‘Facts of the Case’.
While amending the writ petition and challenging the FIR and
seeking an order for its quashing, AS alleged in the application for
amendment as follows:
“That the action taken by the Chief Minister on the
complaint addressed to him is patently contrary to law
and in view of the said CM’s declared public hostility
towards the petitioner as set out elsewhere in the
petition, discloses malice” (paragraph 9.29).
“The lodging of the FIR during pendency of the hearing of
the present writ petition is further evidence of mala fides
on part of Respondent State” (paragraph 9.32).
“That the FIR is an abuse of police and state power. It is
the outcome of personal animosity of the CM of the state
against the petitioner” (paragraph 9.33).
68. Mr. Jethmalani, experienced as he is, must have sensed that
the judgment under challenge rests on weak foundation; hence, he
advanced arguments more touching upon the mala fides that
37
worked in registration of the FIR against AS and YS. As has been
noted above, reacting to Mr. Hegde’s submission that there are no
pleadings of mala fides, he submitted that the writ petitions are
replete with such pleadings.
69. As if the submissions of Mr. Jethmalani were not strong
enough, we had AS and YS filing the application for directions late in
the day seeking to bring on record certain reports/messages/chats
to provide proof that mala fide motive is indeed the genesis of the
FIR. We have also perused the application for directions, and more
particularly the contents of paragraph 13 thereof.
70. For reasons more than one, we are inclined to the view that
the writ petitions before the High Court would not have succeeded
even if the plea of mala fide were advanced and accepted as a
ground of assail to the FIR, based on what has been laid down in
Bhajan Lal (supra).
71. We have perused the writ petitions filed by AS and YS and
have no hesitation to agree with Mr. Hegde that the pleadings are
insufficient to return a finding that the FIR is an outcome of mala
fide. No doubt, certain allegations are levelled against the
Government and the Chief Minister; however, such allegations are
vague and general in nature. Mala fide motives are required to be
affirmatively pleaded and proved. However, no foundation in that
38
behalf has been laid and naturally so, the High Court even did not
examine whether exception could have been taken to the FIR on the
ground of mala fide.
72. Secondly, neither the head of the political executive (the
incumbent Chief Minister) nor that of the administrative executive
(the Chief Secretary) was personally arrayed as a party to any of
the proceedings. Now, law is well-settled that the person against
whom mala fide or bias is imputed should be impleaded as a party
respondent to the proceedings eo nomine and that in his/her
absence no inquiry into the allegations can be made. This is what
the decision in State of Bihar vs. P.P. Sharma10 lays down.
Having regard thereto, since the incumbent holding the office of
Chief Minister of the State against whom mala fide is alleged is not
on record, we are loath to attach any importance to the allegations
of mala fide even if there be any.
73. Thirdly, it must be remembered that when an information is
lodged at the police station and an offence is registered in respect of
a disproportionate assets case, it is the material collected during the
investigation and evidence led in court that is decisive for
determining the fate of the accused. To our mind, whether the first
information report is the outcome of mala fide would be of
10 1992 Supp. (1) SCC 222
39
secondary importance. In such a case, should the allegations of
mala fide be of some prima facie worth, would pale into
insignificance if sufficient materials are gathered for sending the
accused up for a trial; hence, the plea of mala fide may not per se
form the basis for quashing the first information report/complaint.
74. Finally, following the above, what is of substantial importance
is that if criminal prosecution is based upon adequate evidence and
the same is otherwise justifiable, it does not become vitiated on
account of significant political overtones and mala fide motives. We
can say without fear of contradiction, it is not in all cases in our
country that an individual, who is accused of acts of
omission/commission punishable under the P.C. Act but has the
blessings of the ruling dispensation, is booked by the police and
made to face prosecution. If, indeed, in such a case (where a
prosecution should have been but has not been launched) the
succeeding political dispensation initiates steps for launching
prosecution against such an accused but he/she is allowed to go
scot-free, despite there being materials against him/her, merely on
the ground that the action initiated by the current regime is mala
fide in the sense that it is either to settle scores with the earlier
regime or to wreak vengeance against the individual, in such an
eventuality we are constrained to observe that it is criminal justice
40
that would be the casualty. This is because, it is difficult to form an
opinion conclusively at the stage of reading a first information report
that the public servant is either in or not in possession of property
disproportionate to the known sources of his/her income. It would
all depend on what is ultimately unearthed after the investigation is
complete. Needless to observe, the first information report in a
disproportionate assets case must, as of necessity, prima facie,
contain ingredients for the perception that there is fair enough
reason to suspect commission of a cognizable offence relating to
“criminal misconduct” punishable under the P.C. Act and to embark
upon an investigation. Having regard to what we have observed
above in paragraph 49 (supra) and to maintain probity in the
system of governance as well as to ensure that societal pollutants
are weeded out at the earliest, it would be eminently desirable if the
high courts maintain a hands-off approach and not quash a first
information report pertaining to “corruption” cases, specially at the
stage of investigation, even though certain elements of strong-arm
tactics of the ruling dispensation might be discernible. The
considerations that could apply to quashing of first information
reports pertaining to offences punishable under general penal
statutes ex proprio vigore may not be applicable to a P.C. Act
offence. Majorly, the proper course for the high courts to follow, in
41
cases under the P.C. Act, would be to permit the investigation to be
taken to its logical conclusion and leave the aggrieved party to
pursue the remedy made available by law at an appropriate stage.
If at all interference in any case is considered necessary, the same
should rest on the very special features of the case. Although what
would constitute the special features has necessarily to depend on
the peculiar facts of each case, interference could be made in
exceptional cases where the records reveal absolutely no material to
support even a reasonable suspicion of a public servant having
intentionally enriched himself illicitly during the period of his service
and nothing other than mala fide is the basis for subjecting such
servant to an investigation. We quite appreciate that there could be
cases of innocent public servants being entangled in investigations
arising out of motivated complaints and the consequent mental
agony, emotional pain and social stigma that they would have to
encounter in the process, but this small price has to be paid if there
is to be a society governed by the rule of law. While we do not
intend to fetter the high courts from intervening in appropriate
cases, it is only just and proper to remind the courts to be careful,
circumspect and cautious in quashing first information reports
resting on mala fide of the nature alleged herein.
42
75. For the foregoing reasons, we have no option but to hold that
there are no cogent grounds for quashing the FIR in the present
case even on the ground of mala fide.
76. Consequently, we set aside the impugned judgment and order
and direct dismissal of the writ petitions. The appeals are,
accordingly, allowed.
77. Interim protection granted earlier shall continue for a period of
three weeks, within which AS and YS may pursue their remedies in
accordance with law.
78. Parties shall bear their own costs.
79. It is, however, clarified that the observations made herein are
merely for the purpose of disposal of these appeals. Proceedings
hereafter shall be taken to its logical conclusion strictly in
accordance with law.
……………………………………….J
(S. RAVINDRA BHAT)
NEW DELHI; ………………………………………J
1
st MARCH, 2023. (DIPANKAR DATTA)
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