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Enquiry at Pre-FIR Stage Is Not Only Permissible but Desirable: Supreme Court

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Aggrieved by the impugned judgment and order dated 25.11.2020 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 226 of 2020, by which the High Court had dismissed the writ petition challenging the notice dated 04.03.2020 issued by the Police Inspector, 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 points stated in the said notice. The Appellant Charansingh preferred an appeal to the Supreme Court to set aside the impugned order and the aforementioned notice.


The office of the Director-General, Anti-corruption Bureau, Maharashtra State received a complaint against the Appellant and his brother alleging accumulation of wealth disproportionate to his source of earning. At the time of issue of the notice, the Appellant was a Member and President of Municipal Council, Katol District, Nagpur. Having received the complaint, the Anti-corruption Bureau issued a notice to the Appellant asking him to offer documents relating to his property, assets, bank statements, income tax returns and asked the Appellant to give his statement in an open Enquiry. Aggrieved, the Appellant preferred a Criminal Writ Petition before the High Court. During the proceedings, the Appellant submitted that the notice was issued in a purported exercise of power under Section 160 of the Code of Criminal Procedure (Cr.P.C.), 1973, which was not applicable in the present case, as the Appellant was not a witness. It was pointed out that they had lodged no FIR against the Appellant, and could not compel him or anyone to give a statement under any legal provision. Per-contra, the State Argued that the Appellant was called upon to give his statement in an ‘Open Enquiry’ which was a Preliminary Enquiry that was permissible. The State cited Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1, where the court had observed that a “Preliminary Enquiry 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.’’ By observing the above, the High Court, by the impugned judgment and order dismissed the writ petition. An appeal was preferred before the Supreme Court against the dismissal. 

Appellant’s Arguments

The Counsel for the Appellant argued that the notice which directed him to appear before the Anti-Corruption Bureau had no statutory force. Section 160 of the CrPC, 1973 cited by the notice could not apply in the current case as they could not assess the Appellant as a witness in the case. The Appellant’s Counsel argued that a notice calling upon the appellant to give a statement contravened Article 20 (3) and Article 21 of the Constitution of India and that the Enquiry was simply a fishing Enquiry which should not be permitted. The Counsel stated that the Enquiry was an obvious example of political vendetta, motivated by malice to harass the political opponent by the ruling party.

Respondent’s Arguments

The Counsel for the Respondent argued that the issued notice was absolutely in consonance with the ACB Manual which permitted both discrete enquiries and open enquiries, and its purpose was only to judge the veracity of the allegations of the complaint. The Enquiry was initiated simply to find out if an offence had been committed under Section 13 of the Prevention of Corruption Act, 1988. He stated that proper procedure was followed in conducting a discrete Enquiry after the complaint was registered, and an open Enquiry was only put in motion after the scrutiny of all necessary initial reports and even after the issuance of several notices, the Appellant had not co-operated, and that had delayed the conclusion of the Enquiry. However, the Appellant had appeared before the ACB and given partial statements and a few details of some properties owned by him though he had given no proper details asked for. His appearance before the ACB dismissed the fact whether the notice could compel appearance before the investigating authorities and that to invoke the constitutional right under Article 20 (3), an accusation must exist, and since an FIR had not been registered against the Appellant, it did not apply to the case. 

Court’s Observations

The Court observed that the primary question that was posed before them was if an Enquiry at the pre-FIR stage would be legal, and if so to what extent would such an Enquiry be permissible and in deciding so the Court referred to the decision in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1, where the Court carved out certain situations where a Preliminary Enquiry would not only be permissible but also desirable. These were:

“(a) Matrimonial disputes/family disputes

(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases

(e) Cases where there was abnormal delay/latches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for the delay.”

Although it also observed that in case any information came to light regarding any offence that might have been committed, it was mandatory to register an FIR on receipt of such information that may disclose a cognizable offence and it is the general rule. While discussing the delicate nature of the allegations and the alleged malice behind them, the Court observed that such allegations, when brought up against a Public Servant, was a delicate concern, not just for the Public Servant personally, but for the entire Department that the Public Servant represented even if they were eventually found to be baseless. Therefore, a Preliminary Enquiry was not only permissible but desirable, since the conclusion of such Enquiry would either absolve the accused or result in the filing of an FIR. It further observed that the purpose of this Enquiry was only to find out if the allegations held any water, which if found to be true could kick the investigative machinery into play and so such an Enquiry would be in the interest of the alleged accused.

In the present case, the notice issued, did not contravene any provision and had followed proper procedure since the purpose of the Enquiry was only to collect further information, and even at the FIR stage, the Police Officer did not require to be convinced that a Cognizable Offence had been committed, since that only began the investigative stage of the process. With the aforementioned observations, the Court dismissed the appeal.

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