need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged = Therefore, the lack of sanction was rightly found not to be a ground for quashing of the proceedings.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1662 OF 2019
(ARISING OUT OF SLP (CRIMINAL) NO. 3632 OF 2019)
THE STATE OF TELANGANA .....APPELLANT(S)
VERSUS
SRI MANAGIPET @ MANGIPET SARVESHWAR
REDDY .....RESPONDENT(S)
W I T H
CRIMINAL APPEAL NO. 1663 OF 2019
(ARISING OUT OF SLP (CRIMINAL) NO. 4074 OF 2019)
J U D G M E N T
HEMANT GUPTA, J.
1. The order dated 24th December, 2018 passed by the High Court of
Judicature at Hyderabad is the subject matter of challenge in the
present appeals, one by the State and the other by the Accused
Officer.
2. The High Court partly allowed the petition filed by the Accused
Officer under Section 482 of the Code of Criminal Procedure, 19731
qua the proceedings arising out of Crime No. 28/ACB-CIU-HYD/2011
1 for short, ‘Code’
1
dated 9th November, 2011.
3. Such FIR was registered on the basis of the statement given by Ch.
Sudhakar, Deputy Superintendent of Police2
 at about 10 am. The
FIR reads as under:
“On receipt of credible information that Sri. Managipet @
Mangipet Sarveshwar Reddy S/o. Late Narsimha Reddy,
Age 51 years, Occ: OSD, Rang Reddy District, Vikarabad
R/o Flat No. 401, Venkatadri Apartments, Behind HPCL
Petrol Pump, Gachibowli, Hyderabad is a native of
Chilkatonipally (V) Veltoor (Post), Wanaparthy Tq.,
Mahaboobnagar District. The S.O. joined Govt. service
on 19-09-1985 as Sub Inspector of Police and promoted
as Inspector of Police on 04-04-1995 and Dy. Supdt. of
Police, in the year 2007. He worked as SI at
Rayadurgam, Hayathnagar, Malkajigiri, as Circle
Inspector at Huzurnagar of Nalgonda District Narsingi,
Uppal, Rajendranagar of Cyberabad Commissionerate,
R.R. District as ACP., Rajendranagar for about 4 years and
presently working as OSD, Ranga Reddy District,
Vikarabad.
During the period of his service he acquired Six
Multistoried Buildings, One Multistoried commercial
complex, 27 plots and 26 Acres of land at Hyderabad,
Ranga Reddy and Mahboobnagar Districts and one
Scorpio car, one Hyundai Verna car and Maruti Car, all
worth Rs.3,55,61,500/-.
The probable income of the A.O. and his family members
from all their known sources of income when calculated
roughly would be Rs.60,00,000/-. The probable
expenditure of the accused officer including household
expenditure and expenditure on children education is
tentatively estimated at Rs.23,00,000/-.
The likely savings of the accused officer is Rs.37,00,000/-
i.e., the probable income of Rs. 60,00,000 - minus the
probable expenditure of Rs.23,00,000/-.
As against the likely savings of Rs.37,00,000/- the
Accused Officer has acquired assets approximately worth
Rs.3,55,61,500/-. Thus, the A.O. is in possession of
assets worth Rs.3,18,61,500/- which are disproportionate
2 for short, ‘DSP’
2
to the known sources of his income for which he cannot
satisfactorily account for and thereby committed the
offence punishable U/s 13(2) r/w 13(1)(e) of P.C. Act
1988.
Permission has been obtained from the competent
authority to register a case against the above official U/s
13(2) r/w 13(1)(e) of the Prevention of Corruption Act,
1988.
Hence, the FIR.”
4. A charge sheet was filed on 9th October, 2017 on completion of the
investigations. As per the Report, the Accused Officer was said to
be in possession of assets worth Rs.3,18,61,500/- alleged to be
disproportionate to his known sources of income. The total worth
of the property against his savings of Rs.37 lakhs was found to be
approximately Rs.3,55,61,500/-. During the investigations, as
many as 114 witnesses were examined. Ch. Sudhakar, DSP, CIU,
ACB, Hyderabad and five more investigating officers conducted the
investigations and prepared the final report.
5. The High Court in a petition for quashing of the charge sheet, held
that there was no authorization to register the crime and that the
informant cannot be the investigating officer and, thus, quashed
the same. The State is aggrieved against the said two findings
whereas, the Accused Officer has challenged the findings of the
High Court not accepting the grounds pressed by him in seeking
the quashing of the charge sheet - that there is no preliminary
inquiry before the registration of the crime; that there is no
sanction and that there is a delay in the completion of the
3
investigation which has prejudiced the rights of the Accused
Officer.
6. Ms. Bina Madhavan, learned counsel for the State submitted that
the Accused Officer joined as Sub Inspector on 19th September,
1985 and was promoted as Inspector on 4th April, 1997. He was
further promoted as DSP in the year 2007. In pursuance of the FIR
filed, a draft final report was prepared on 30th April, 2015 but the
same was submitted on 9th October, 2017 after the Accused Officer
retired on 31st May, 2017. Section 17 of the Prevention of
Corruption Act, 19883
 pertains to investigation into cases under the
Act. A Police officer not below the rank of Inspector, authorized by
the State Government by general or special order, may also
investigate any such offence. An offence under clause (e) of subsection (1) of Section 13 of the Act cannot be investigated without
an order of the Police Officer not below the rank of Superintendent
of Police. Section 17 of the Act reads as under:
“17. Persons authorised to investigate.—
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), no police officer
below the rank,—
a) xx xx xx
b) xx xx xx
c) elsewhere, of a Deputy Superintendent of Police or a
police officer of equivalent rank, shall investigate any
offence punishable under this Act without the order of a
Metropolitan Magistrate or a Magistrate of the first class,
as the case may be, or make any arrest therefor without
a warrant:
3 for short, ‘Act’
4
Provided that if a police officer not below the rank of
an Inspector of Police is authorised by the State
Government in this behalf by general or special order, he
may also investigate any such offence without the order
of a Metropolitan Magistrate or a Magistrate of the first
class, as the case may be, or make arrest therefor
without a warrant:
Provided further that an offence referred to in clause
(e) of sub-section (1) of section 13 shall not be
investigated without the order of a police officer not
below the rank of a Superintendent of Police.”
7. Learned counsel for the State referred to Government Order No.
3168 dated 24th May, 2008 re-employing Sri K. Sampath Kumar,
Joint Director, Anti-Corruption Bureau as Officer on Special Duty
after his superannuation on 31st May, 2008 for a period of one year.
Such order of re-employment was renewed on 5th March, 2009; 13th
May, 2010 and on 30th May, 2011, each extending the term of reemployment by one year. It was on 9th November, 2011, the Joint
Director, CIU & SES, Anti-Corruption Bureau authorized Ch.
Sudhakar, DSP to register a case against the Accused Officer under
Section 13(2) read with Section 13(1)(e) of the Act and inspect any
premises, bankers books of the Accused Officer or of any other
person concerned with the affairs of the Accused Officer and take
or cause to be taken certified copies of the relevant entries
therefrom for the purpose of investigation. It is in pursuance of
such authorization that the FIR was lodged, premises were
searched and the Accused Officer was arrested.
8. The High Court relied upon the judgment reported as Union Public
5
Service Commissioner v. Girish Jayanti Lal Vaghela & Ors.
4
to
hold that the statutory rules do not permit to extend the age of
superannuation without compliance of Article 16 of the Constitution
of India. A person who was appointed for a short period of six
months or till availability of a regular selectee, whichever is earlier
is practically appointed on a contract basis and could not be called
a government servant. The High Court returned the following
findings:
“21. It is neither pleaded nor is there any material to
show that the appointment of Respondent 1 had been
made after issuing public advertisement or the body
authorised under the relevant rules governing the
conditions of service of Drugs Inspectors in the Union
Territory of Daman and Diu had selected him. His
contractual appointment for six months was dehors the
rules. The appointment was not made in a manner which
could even remotely be said to be compliant with Article
16 of the Constitution. The appointment being purely
contractual, the stage of acquiring the status of a
government servant had not arrived. While working as a
contractual employee Respondent 1 was not governed by
the relevant service rules applicable to Drugs Inspector.
He did not enjoy the privilege of availing casual or
earned leave. He was not entitled to avail the benefit of
general provident fund nor was he entitled to any
pension which are normal incidents of a government
service. Similarly, he could neither be placed under
suspension entitling him to a suspension allowance nor
could he be transferred. Some of the minor penalties
which can be inflicted on a government servant while he
continues to be in government service could not be
imposed upon him nor was he entitled to any protection
under Article 311 of the Constitution. In view of these
features it is not possible to hold that Respondent 1 was
a government servant.”
9. We find glaring illegality in the line of reasoning and the findings
4 (2006) 2 SCC 482
6
recorded by the High Court. Girish Jayanti Lal Vaghela was a
case where Shri Vaghela was appointed on a short term contract
basis, on a fixed salary till a candidate was selected by the Union
Public Service Commission on a regular basis. The advertisement
to fill up the post on regular basis contemplated relaxation of five
years in age for government servants. He claimed relaxation in
age being a government servant for appointment on regular basis.
It was held that it was a contract which governed his terms of
service and not the rules framed under the proviso to Article 309 of
the Constitution of India in as much as he was not appointed in
accordance with the Rules and, thus, was not eligible for any
relaxation in upper age for appointment on a regular basis in a post
advertised by Union Public Service Commission.
10. Article 310 of the Constitution contemplates that except as
expressly provided, every person who is a member of a defence
service or of a civil service of the Union or of an all-India service or
holds any post connected with defence or any civil post under the
Union, holds office at the pleasure of the President. In respect of
the State Services, however, he or she holds office at the pleasure
of the Governor. In the present case, Sri K. Sampath Kumar was reemployed for a period of one year by the State Government in
exercise of powers conferred under Article 162 of the Constitution
of India. There is no prohibition in any of the service rules that
there cannot be any re-employment of a person who was once in a
civil service of either the Center or the State.
7
11. Entry 2 of List II of the State List is the Police (including railway and
village police) subject to the provisions of Entry 2A of List I.
Therefore, various facets of Policing in the State fall within the
legislative competence of the State and the re-employment of a
retired personnel who was a member of Indian Police Service, falls
within the executive power of the State. As a re-employed officer,
he was holding a civil post as his salary was being paid from the
State Exchequer. He was discharging duties and responsibilities in
the Anti-Corruption Bureau.
12. In P.H. Paul Manoj Pandian v. P. Veldurai
5
, it has been held that
the executive power of the State is coterminous with the legislative
power of the State Legislature i.e. if the State Legislature has
jurisdiction to make law with respect to a subject, the State
executive can make regulations and issue government orders with
respect to it. This Court held as under:
"48. The powers of the executive are not limited merely
to the carrying out of the laws. In a welfare State the
functions of the executive are ever widening, which cover
within their ambit various aspects of social and economic
activities. Therefore, the executive exercises power to fill
gaps by issuing various departmental orders. The
executive power of the State is coterminous with the
legislative power of the State Legislature. In other words,
if the State Legislature has jurisdiction to make law with
respect to a subject, the State executive can make
regulations and issue government orders with respect to
it, subject, however, to the constitutional limitations.
Such administrative rules and/or orders shall be
inoperative if the legislature has enacted a law with
respect to the subject. Thus, the High Court was not
justified in brushing aside the Government Order dated
5 (2011) 5 SCC 214
8
16-11-1951 on the ground that it contained
administrative instructions.”
13. In Bishambhar Dayal Chandra Mohan & Ors. v. State of Uttar
Pradesh & Ors.
6
, it was held that the executive power of the State
Government cannot be circumscribed if it does not go against the
provisions of the Constitution or any law. The Court held as under:
"20. …………….. In Ram Jawaya Kapur v. State of
Punjab [AIR 1955 SC 549 : (1955) 2 SCR 225 : 1955 SCJ
504] Mukherjea, C.J., dealt with the scope of Articles 73
and 162 of the Constitution. The learned Chief Justice
observed that neither of the two Articles contains any
definition as to what the executive function is or gives an
exhaustive enumeration of the activities which would
legitimately come within its scope. It was observed:
“Ordinarily the executive power connotes the residue of
governmental functions that remain after legislative and
judicial functions are taken away.” It is neither necessary
nor possible to give an exhaustive enumeration of the
kinds and categories of executive functions which may
comprise both the formulation of the policy as well as its
execution. In other words, the State in exercise of its
executive power is charged with the duty and the
responsibility of carrying on the general administration of
the State. So long as the State Government does not go
against the provisions of the Constitution or any law, the
width and amplitude of its executive power cannot be
circumscribed. If there is no enactment covering a
particular aspect, certainly the Government can carry on
the administration by issuing administrative directions or
instructions, until the legislature makes a law in that
behalf. Otherwise, the administration would come to a
standstill.”
14. Sri K. Sampath Kumar was re-employed initially for a period of one
year after his retirement. He was not being recruited for holding a
civil post for the first time which may warrant compliance of rigour
of Article 16 of the Constitution. He had crossed all bridges, when
6 (1982) 1 SCC 39
9
he was appointed and discharged duties before attaining the age of
superannuation. Such re-employment by the State is in exercise of
the powers conferred under Article 162 of the Constitution of India.
Such executive powers of the State do not contravene any other
statutory provisions; therefore, re-employment in this regard is
supplementing the statutory rules and regulations and not
supplanting them. Therefore, Sri K. Sampath Kumar has
discharged the duties of Joint Director in the Anti-Corruption Bureau
in exercise of the powers conferred by the State Government.
15. We further find that Sri K. Sampath Kumar’s acts whilst discharging
the duties of Joint Director in the Anti-Corruption Bureau were
within the scope of the assumed official authority in public interest
and not for his own benefit. Therefore, acts undertaken in this
regard by the officer will be taken to be valid. This Court in a
judgment reported as Gokaraju Rangaraju v. State of Andhra
Pradesh
7
 held as under:
“17. A judge, de facto, therefore, is one who is not a
mere intruder or usurper but one who holds office,
under colour of lawful authority, though his
appointment is defective and may later be found to be
defective. Whatever be the defect of his title to the
office, judgments pronounced by him and acts done by
him when he was clothed with the powers and functions
of the office, albeit unlawfully, have the same efficacy
as judgments pronounced and acts done by a judge de
jure. Such is the de facto doctrine, born of necessity
and public policy to prevent needless confusion and
endless mischief…
19. In our view, the de facto doctrine furnishes an
answer to the submissions of Shri Phadke based on
7 (1981) 3 SCC 132
10
Section 9 of the Criminal Procedure Code and Article 21
of the Constitution. The judges who rejected the appeal
in one case and convicted the accused in the other case
were not mere usurpers or intruders but were persons
who discharged the functions and duties of judges
under colour of lawful authority. We are concerned with
the office that the Judges purported to hold. We are not
concerned with the particular incumbents of the office.
So long as the office was validly created, it matters not
that the incumbent was not validly appointed. A person
appointed as a Sessions Judge, Additional Sessions
Judge or Assistant Sessions Judge, would be exercising
jurisdiction in the Court of Session and his judgments
and orders would be those of the Court of Session. They
would continue to be valid as the judgments and orders
of the Court of Session, notwithstanding that his
appointment to such Court might be declared invalid.
On that account alone, it can never be said that the
procedure prescribed by law has not been followed. It
would be a different matter if the constitution of the
court itself is under challenge. We are not concerned
with such a situation in the instant cases. We, therefore,
find no force in any of the submissions of the learned
Counsel.”
16. The aforesaid judgment relies upon Pulin Behari Das v. King
Emperor
8
, wherein Justice Mookerjee held the following:-
“The doctrine that the acts of officers de
facto performed by them within the scope of their
assumed ??? authority in the interest of the public or
third persons and not for their own benefit, are
generally as valid and binding as if they were the acts
of officers de jure, dates as far back as the Year-Books,
and it stands confirmed, without any qualification or
exception, by a long line of adjudications. Viner says
“acts done by an officer de facto and not de jure are
good, for the law favours one in a refuted authority”
(Abridgment, Tit. Officers and Officers G. 4). In fact the
question for determination in cases involving the
application of the de facto doctrine, is not, as a rule,
whether the challenged acts, assuming the officer to
be de facto, as such are valid, but whether the person
whose title is questioned is or was really a de
facto officer.
8 1911 SCC OnLine Cal 159 : (1911-12) 16 CWN 1105
11
xx xx xx
It is not necessary for our present purposes to
investigate exhaustively all the qualifications or
limitations subject to which the de facto doctrine has to
be applied. The substance of the matter is that the de
facto doctrine was introduced into the law as a matter
of policy and necessity, to protect the interest of the
public and the individual where those interests were
involved in the official acts of persons exercising the
duties of an office without being lawful Officers. The
doctrine in fact is necessary to maintain the supremacy
of the law and to preserve peace and order in the
community at large. Indeed, if any individual or body of
individuals were permitted at his or their pleasure to
collaterally challenge the authority of and to refuse
obedience to the Government of the State and the
numerous functionaries through whom it exercised its
various powers, on the ground of irregular existence or
defective title, insubordination and disorder of the worst
kind would be encouraged. For the good order and
peace of society their authority must be upheld until in
some regular mode their title is directly investigated
and determined, [See the observations
in Scadding v. Lorant [???] and Norton v. Shelby
County [118 U.S. 425 (1886).] In the matter now before
us, the sanction under sec. 196 of the Criminal
Procedure Code was granted by the de facto Local
Government and the cognizance of the case has been
taken by the de facto Sessions Judge. In my opinion, it
is not open to the Appellants to question collaterally the
legality of the conviction upon the allegation that the
Local Government was irregularly constituted and the
Sessions Judge irregularly appointed. The first ground
upon which the legality of the trial is assailed must
consequently be overruled.”
17. The de facto doctrine as encapsulated above has been reiterated
by this Court, even in the context of an executive appointment, in
the judgment reported as Pushpadevi M. Jatia v. M. L.
Wadhawan, Additional Secretary, Government of India and
Ors.
9
. In this case, the Additional Secretary to the Government of
9 (1987) 3 SCC 367
12
India had detained Mohanlal Jatia vide a Government order under
sub-section (1) of Section 3 of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974, on
being satisfied that it was necessary to detain him. Herein, the
Additional Secretary relied on statements recorded by one R.C.
Singh whom the appellant contended was not a “gazetted officer”
of enforcement under FERA, and therefore statements recorded by
the officer could not be relied upon to detain him. It was discussed:
“17. In any event, the learned Counsel further contends
that R.C. Singh was clothed with the insignia of office and
he was purporting to exercise the functions and duties of
a gazetted officer of Enforcement under Section 40(1) of
the FERA and therefore the de facto doctrine was
attracted. He relies upon the decision of this Court
in Gokaraju Rangaraju v. State of Andhra Pradesh [(1981)
3 SCC 132: 1981 SCC (Cri) 652: (1981) 3 SCR 474]
enunciating the de facto doctrine, born of necessity and
public policy to prevent needless confusion and endless
mischief. In other words, he contends that where an
officer acts under the law, it matters not how the
appointment of the incumbent is made so far as the
validity of his acts are concerned.
18. We are inclined to the view that in this jurisdiction
there is a presumption of regularity in the acts of officials
and that the evidential burden is upon him who asserts
to the contrary. The contention that R.C. Singh was not a
gazetted officer of Enforcement within the meaning of
Section 40(1) of the FERA appears to be wholly
misconceived besides being an afterthought. The validity
of appointment of R.C. Singh to be an officer of
Enforcement under this Act cannot be questioned…….
20. … Where an office exists under the law, it matters
not how the appointment of the incumbent is made, so
far as validity of his acts are concerned. It is enough that
he is clothed with the insignia of the office, and exercises
its powers and functions. The official acts of such persons
are recognised as valid under the de facto doctrine, born
of necessity and public policy to prevent needless
confusion and endless mischief. In Gokaraju Rangaraju
13
case [(1981) 3 SCC 132 : 1981 SCC (Cri) 652 : (1981) 3
SCR 474] Chinnappa Reddy, J., explained that this
doctrine was engrafted as a matter of policy and
necessity to protect the interest of the public.”
18. Further, a Full Bench of Kerala High Court in a judgment reported as
P.S. Menon v. State of Kerala
10 held that the de facto doctrine
was engrafted as a matter of policy and necessity to protect the
interest of the public as well as the individuals involved in the
official capacity of persons exercising the duty of an officer without
actually being one in strict point of law. These officers may not be
the officers de jure but by virtue of particular circumstances, their
acts should be considered valid as a matter of public policy.
19. In another Division Bench judgment reported as P. Mahamani v.
Tamil Nadu Magnesite, Ltd., Salem & Ors.
11
, the Madras High
Court held as under:
“12. An officer de facto is one who by some colour or
right is in possession of an office and for the time being
performs his duties with public acquiescence, though
having no right in fact. Whereas an intruder is one who
attempts to perform the duties of an office without
authority of law, and without the support of public
acquiescence. No one is under obligation to recognise
or respect the acts of an intruder, and for all legal
purposes they are absolutely void. But for the sake of
order and regularity, and to prevent confusion in the
conduct of public business and in security of private
rights, the acts of officers de-facto arc not suffered to
be questioned because of the want of legal authority
except by some direct proceeding instituted for the
purpose. In all other cases the acts of an officer de
facto are as valid and effectual, while he is suffered to
retain the office as though he were an officer by right,
and the same legal consequences will flow from them
10 AIR 1970 Ker 165
11 (1993) 2 LLN 353
14
for the protection of the public and of third parties.
There is an important principle, which finds concise
expression in the legal maxim that the acts of
officers de facto cannot be questioned collaterally. A
person may be entitled to his designation although he is
not a true and rightful incumbent of the office, yet he is
no more usurper but holds it under colour of lawful
authority. The de facto doctrine was introduced into the
law as a matter of policy and necessity, to protect the
interest of the public and the individual where these
interests were involved in the official act of persons
exercising the duties of an office without being lawful
officers. The doctrine in fact is necessary to maintain
the supremacy of the law and lo preserve peace and
order in the community at large. Indeed, if any
individual or body of individuals were permitted, at his
or their pleasure, lo collaterally challenge the authority
of and lo refuse obedience lo the Government of the
State and the numerous functionaries through whom it
exercised its various powers on the ground of irregular
existence of defective title insubordination and disorder
of the worst kind would be encouraged. For the good
order and peace of society, their authority must be up
held until in some regular mode their title is directly
investigated and determined. When one holds office
under colour of lawful authority, whatever be the defect
of his title lo the office, acts done by him when he was
clothed with the powers and functions of the office,
albeit unlawfully, have the same efficacy and acts done
by an officer de jure. The defective appointment of a de
facto officer may be questioned directly in a proceeding
lo which he may be a party but it cannot be permitted
to be questioned in a litigation between two private
litigants, a litigation which is of no concern or
consequence lo the officer concerned. So the writ
petitioner cannot be heard to say that Sri Madhavan
Nair, the second respondent had no authority to preside
over the meeting of the Board of Directors wherein it
was resolved lo place him under suspension and initiate
disciplinary action.”
20. The de facto doctrine was reiterated yet again in a recent Supreme
Court judgment reported as Veerendra Kumar Gautam & Ors. v.
Karuna Nidhan Upadhyay & Ors.
12
.
12 (2016) 14 SCC 18
15
21. Therefore, we find that Sri K. Sampath Kumar was discharging the
duties of Joint Director in Anti-Corruption Bureau under the
authority conferred by the State. The authorisation in favour of Ch.
Sudhakar was issued when he was performing his duties in public
interest and not for his own benefit. Therefore, such authorisation
is valid and binding as if it was an act of an officer de jure.
22. We further find that the High Court, while deciding a petition for
quashing of proceedings under Section 482 of the Code, could not
have commented upon the nature of employment of Sri K. Sampath
Kumar, as such a question does not fall within the jurisdiction of the
High Court whilst deciding the aforementioned petition.
23. Sri K. Sampath Kumar has authorised Ch. Sudhakar and the final
report had been filed after the investigation conducted by the
latter, in terms of clause (c) of Section 17 of the Act. In this regard,
it cannot be said that the investigation was not conducted in a
manner contemplated under law. Thus, Ch. Sudhakar was an
authorized Officer, competent to investigate and file a report for
the offences under the Act including of an offence under Section
13(1)(e) of the Act.
24. Another finding recorded by the High Court is that the informant
cannot be the investigating officer. Such a finding is based upon
Ch. Sudhakar being both the informant and the initiator of the
investigations. The High Court derives support from the judgment
16
of this Court reported as Mohan Lal v. State of Punjab
13
to hold
that a fair investigation is the very foundation of fair trial, which
necessarily postulates that the informant and the investigator must
not be the same person.
25. The said judgment however has been held to be prospective in the
judgment reported as Varinder Kumar v. State of Himachal
Pradesh
14
 wherein, this Court has succinctly put as under:
"18. The criminal justice delivery system, cannot be
allowed to veer exclusively to the benefit of the offender
making it uni-directional exercise. A proper
administration of the criminal justice delivery system,
therefore requires balancing the rights of the accused
and the prosecution, so that the law laid down in Mohan
Lal (supra) is not allowed to become a spring board for
acquittal in prosecutions prior to the same, irrespective
of all other considerations. We therefore hold that all
pending criminal prosecutions, trials and appeals prior to
the law laid down in Mohan Lal (supra) shall continue to
be governed by the individual facts of the case.”
26. Thus, we find that the orders of the High Court to quash the
proceedings against the Accused Officer are not sustainable and
are consequently, set aside. Accordingly, the appeal filed by the
State is allowed and the matter is remitted back to the learned trial
court for further proceedings in accordance with law.
27. Coming to the appeal filed by the Accused Officer, Mr. Guru Krishna
Kumar, learned senior counsel vehemently argued that a
preliminary inquiry before the registration of a crime is mandatory.
Reference was made to a judgment reported as Lalita Kumari v.
13 (2018) 17 SCC 627
14 2019 SCC OnLine SC 170
17
Government of Uttar Pradesh & Ors.
15
 as well as the judgment
reported as State by Karnataka Lokayukta Police Station,
Bengaluru v. M.R. Hiremath
16
.
28. In Lalita Kumari, the Court has laid down the cases in which a
preliminary inquiry is warranted, more so, to avoid an abuse of the
process of law rather than vesting any right in favour of an
accused. Herein, the argument made was that if a police officer is
doubtful about the veracity of an accusation, he has to conduct a
preliminary inquiry and that in certain appropriate cases, it would
be proper for such officer, on the receipt of a complaint of a
cognizable offence, to satisfy himself that prima facie, the
allegations levelled against the accused in the complaint are
credible. It was thus held as under:-
“73. In terms of the language used in Section 154 of the
Code, the police is duty bound to proceed to conduct
investigation into a cognizable offence even without
receiving information (i.e. FIR) about commission of such
an offence, if the officer in charge of the police station
otherwise suspects the commission of such an offence.
The legislative intent is therefore quite clear, i.e., to
ensure that every cognizable offence is promptly
investigated in accordance with law. This being the legal
position, there is no reason that there should be any
discretion or option left with the police to register or not
to register an FIR when information is given about the
commission of a cognizable offence. Every cognizable
offence must be investigated promptly in accordance
with law and all information provided under Section 154
of the Code about the commission of a cognizable
offence must be registered as an FIR so as to initiate an
offence. The requirement of Section 154 of the Code is
only that the report must disclose the commission of a
cognizable offence and that is sufficient to set the
investigating machinery into action.”
15 (2014) 2 SCC 1
16 (2019) 7 SCC 515
18
29. The Court concluded that the registration of an FIR is mandatory
under Section 154 of the Code if the information discloses
commission of a cognizable offence and no preliminary inquiry is
permissible in such a situation. This court held as under:
“111. In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of
the Code, if the information discloses commission of a
cognizable offence and no preliminary inquiry is
permissible in such a situation.
ii) If the information received does not disclose a
cognizable offence but indicates the necessity for an
inquiry, a preliminary inquiry may be conducted only to
ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable
offence, the FIR must be registered. In cases where
preliminary inquiry ends in closing the complaint, a copy
of the entry of such closure must be supplied to the first
informant forthwith and not later than one week. It must
disclose reasons in brief for closing the complaint and
not proceeding further.
iv) The police officer cannot avoid his duty of registering
offence if cognizable offence is disclosed. Action must be
taken against erring officers who do not register the FIR if
information received by him discloses a cognizable
offence.
v) The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only
to ascertain whether the information reveals any
cognizable offence.
vi) As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts and
circumstances of each case. The category of cases in
which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
19
b) Commercial offences
c) Medical negligence cases
d) Corruption cases.”
30. It must be pointed that this Court has not held that a preliminary
inquiry is a must in all cases. A preliminary enquiry may be
conducted pertaining to Matrimonial disputes/family disputes,
Commercial offences, Medical negligence cases, Corruption cases
etc. The judgment of this court in Lalita Kumari does not state
that proceedings cannot be initiated against an accused without
conducting a preliminary inquiry.
31. In M.R. Hiremath, this Court set aside an order on an application
for discharge under Section 239 of the Code, inter alia, for the
reason that a certificate under Section 65B of Evidence Act had not
been produced while relying upon the evidence of a spy camera.
An argument was raised that the spy camera has been given by
the investigating officer even before investigations were formally
started. On the strength of such fact, an argument was raised by
Mr. Guru Krishna Kumar, learned counsel for the Accused Officer,
that without conducting a preliminary inquiry the FIR could not
have been lodged. This Court in M.R. Hiremath held that when
the investigating officer had handed over the spy camera to the
complainant, the purpose was to ascertain, in the course of the
preliminary inquiry, whether information furnished by the
complainant could form the basis of lodging an FIR. It was held to
be a preliminary inquiry to ascertain whether the information
20
revealed a cognizable offence. The Court held as under:
“23. In the present case, on 15-11-2016, the
complainant is alleged to have met the respondent.
During the course of the meeting, a conversation was
recorded on a spy camera. Prior thereto, the
investigating officer had handed over the spy camera to
the complainant. This stage does not represent the
commencement of the investigation. At that stage, the
purpose was to ascertain, in the course of a preliminary
inquiry, whether the information which was furnished by
the complainant would form the basis of lodging a first
information report. In other words, the purpose of the
exercise which was carried out on 15-11-2012 was a
preliminary enquiry to ascertain whether the
information reveals a cognizable offence.”
32. The said judgment does not help the learned counsel for the
Accused Officer. The scope and ambit of a preliminary inquiry
being necessary before lodging an FIR would depend upon the
facts of each case. There is no set format or manner in which a
preliminary inquiry is to be conducted. The objective of the same
is only to ensure that a criminal investigation process is not
initiated on a frivolous and untenable complaint. That is the test
laid down in Lalita Kumari.
33. In the present case, the FIR itself shows that the information
collected is in respect of disproportionate assets of the Accused
Officer. The purpose of a preliminary inquiry is to screen wholly
frivolous and motivated complaints, in furtherance of acting fairly
and objectively. Herein, relevant information was available with the
informant in respect of prima facie allegations disclosing a
21
cognizable offence. Therefore, once the officer recording the FIR is
satisfied with such disclosure, he can proceed against the accused
even without conducting any inquiry or by any other manner on
the basis of the credible information received by him. It cannot be
said that the FIR is liable to be quashed for the reason that the
preliminary inquiry was not conducted. The same can only be
done if upon a reading of the entirety of an FIR, no offence is
disclosed. Reference in this regard, is made to a judgment of this
Court reported as State of Haryana v. Bhajan Lal
17 wherein, this
Court held inter alia that where the allegations made in the FIR or
the complaint, even if they are taken at their face value and
accepted in their entirety, do not prima facie constitute any
offence or make out a case against the accused and also 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.
34. Therefore, we hold that the preliminary inquiry warranted in Lalita
Kumari is not required to be mandatorily conducted in all
corruption cases. It has been reiterated by this Court in multiple
instances that the type of preliminary inquiry to be conducted will
depend on the facts and circumstances of each case. There are no
fixed parameters on which such inquiry can be said to be
conducted. Therefore, any formal and informal collection of
17 1992 Supp (1) SCC 335
22
information disclosing a cognizable offence to the satisfaction of
the person recording the FIR is sufficient.
35. We also do not find any merit in the argument that there has been
no sanction before the filing of the report. The sanction can be
produced by the prosecution during the course of trial, so the
same may not be necessary after retirement of the Accused Officer.
This Court in K. Kalimuthu v. State by DSP
18
 held as under:
“15. The question relating to the need of sanction under
Section 197 of the Code is not necessarily to be
considered as soon as the complaint is lodged and on the
allegations contained therein. This question may arise at
any stage of the proceeding. The question whether
sanction is necessary or not may have to be determined
from stage to stage…”
36. The High Court has rightly held that no ground is made out for
quashing of the proceedings for the reason that the investigating
agency intentionally waited till the retirement of the Accused Officer. The question as to whether a sanction is necessary to prosecute the Accused Officer, a retired public servant, is a question
which can be examined during the course of the trial as held by
this Court in K. Kalimuthu. In fact, in a recent judgment in Vinod
Kumar Garg v. State (Government of National Capital Territory of Delhi)
19
, this Court has held that if an investigation was
not conducted by a police officer of the requisite rank and status
required under Section 17 of the Act, such lapse would be an irregularity, however unless such irregularity results in causing preju18 (2005) 4 SCC 512
19 Criminal Appeal No. 1781 of 2009 decided on 27th November, 2019
23
dice, conviction will not be vitiated or be bad in law. Therefore, the
lack of sanction was rightly found not to be a ground for quashing
of the proceedings.
37. Mr. Guru Krishna Kumar further refers to a Single Bench judgment
of the Madras High Court in M. Soundararajan v. State through
the Deputy Superintendant of Police, Vigilance and Anti
Corruption, Ramanathapuram20
 to contend that amended provisions of the Act as amended by Act XVI of 2018 would be applicable as the Amending Act came into force before filing of the charge
sheet. We do not find any merit in the said argument. In the aforesaid case, the learned trial court applied amended provisions in the
Act which came into force on 26th July, 2018 and acquitted both the
accused from charge under Section 13(1)(d) read with 13(2) of the
Act. The High Court found that the order of the trial court to apply
the amended provisions of the Act was not justified and remanded
the matter back observing that the offences were committed prior
to the amendments being carried out. In the present case, the FIR
was registered on 9th November, 2011 much before the Act was
amended in the year 2018. Whether any offence has been committed or not has to be examined in the light of the provisions of the
statute as it existed prior to the amendment carried out on 26th
July, 2018.
20 Crl. A. (MD) No. 488 of 2018 and Crl. M.P. (MD) No. 8712 of 2018 decided on 30th October,
2018.
24
38. In view thereof, we do not find any merit in the reasonings
recorded by the High Court in respect of contentions raised by the
Accused Officer. The arguments raised by the Accused Officer cannot be accepted in quashing the proceedings under the Act. Accordingly, Criminal Appeal No. 1663 of 2019 filed by the Accused
Officer is dismissed whereas Criminal Appeal No. 1662 of 2019 filed
by the State is allowed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
DECEMBER 06, 2019.
25