LAW FOR ALL : possession of Disproportionate Assets=challenging the very “source” of the respondents’ income and the questioning the assets acquired by them based on such income. Hence, at the stage of quashing of an FIR where the Court only has to ascertain whether the FIR prima facie makes out the commission of a cognizable offence, reliance on the documents produced by the respondents to quash the FIR would be contrary to fundamental principles of law.The High Court has gone far beyond the ambit of its jurisdiction by virtually conducting a trial in an effort to absolve the respondents.-The only infirmity pointed out by the respondents which has been acceded to by the appellant is in relation to the addition of the value of the elevator separately when the whole house had already been valued. However, by itself, it only being a value of Rs 10 lakhs, this will not be enough to take away the whole basis of the Disproportionate Assets case against the respondents. Hence, at this stage, we cannot quash the FIR against the respondents and hold that the appellant’s investigation pursuant to it shall continue.

Wednesday, October 13, 2021

possession of Disproportionate Assets=challenging the very “source” of the respondents’ income and the questioning the assets acquired by them based on such income. Hence, at the stage of quashing of an FIR where the Court only has to ascertain whether the FIR prima facie makes out the commission of a cognizable offence, reliance on the documents produced by the respondents to quash the FIR would be contrary to fundamental principles of law.The High Court has gone far beyond the ambit of its jurisdiction by virtually conducting a trial in an effort to absolve the respondents.-The only infirmity pointed out by the respondents which has been acceded to by the appellant is in relation to the addition of the value of the elevator separately when the whole house had already been valued. However, by itself, it only being a value of Rs 10 lakhs, this will not be enough to take away the whole basis of the Disproportionate Assets case against the respondents. Hence, at this stage, we cannot quash the FIR against the respondents and hold that the appellant’s investigation pursuant to it shall continue.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 1045 of 2021

(Arising out of SLP (Crl) No. 1597 of 2021)

Central Bureau of Investigation (CB) and Anr. .... Appellants

Versus

Thommandru Hannah Vijayalakshmi .... Respondents

@ T. H. Vijayalakshmi and Anr.

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

This judgment has been divided into sections to facilitate analysis. They are:

A The Appeal

B Factual and procedural history

C Counsel’s submissions

D Whether a Preliminary Inquiry is mandatory before registering an FIR

D.1 Precedents of this Court

D.2 CBI Manual

D.3 Analysis

E Whether the FIR should be quashed

E.1 Scope of review before the High Court

E.2 Whether the FIR is liable to be quashed in the present case

F Conclusion

PART A

A The Appeal

1 The appeal arises from a judgment dated 11 February 2020 of a Single Judge

of the High Court for the State of Telangana, by which: (i) a writ petition1 filed by the

respondents under Article 226 of the Constitution of India was allowed; and (ii) the

First Information Report2 dated 20 September 2017 registered against the

respondents was set aside, together with proceedings taken up pursuant to the FIR.

2 The first respondent is a Commissioner of Income Tax while the second

respondent is her spouse. The second respondent is a Member of the Legislative

Assembly3 and is a Minister in the State government of Andhra Pradesh. The FIR4

dated 20 September 2017 has been registered against the first respondent for being

in possession (allegedly) of assets disproportionate to her known sources of income.

The second respondent is alleged to have abetted the offence. The FIR has thus

been registered for offences punishable under Section 13(2) read with Section

13(1)(e) of the Prevention of Corruption Act 19885 and Section 109 of the Indian

Penal Code 18606

. The allegation is of possession of Disproportionate Assets to the

tune of Rs 1,10,81,692, which was 22.86 per cent of the income earned during the

check period between 1 April 2010 to 29 February 2016.

3 While quashing the FIR, the High Court held that: (i) the information about the

respondents’ income can be ascertained from their ‘known sources of income’ under

1 Writ Petition No 8552 of 2018 2 “FIR” 3 “MLA” 4 FIR No RC MAl 2017 A 0021 5 “PC Act” 6 “IPC”

PART B

Section 13(1)(e) of the PC Act, such as their Income Tax Returns, information

submitted to their department under the Central Civil Services (Conduct) Rules

19647 and affidavit filed under the Representation of the People Act 19518 and the

Rules under it; (ii) to counter the veracity of the information from these sources, the

appellant, Central Bureau of Investigation9

, should have conducted a Preliminary

Enquiry under the Central Bureau of Investigation (Crime) Manual 200510 before

registration of the FIR; and (iii) on the basis of the information ascertained from

these ‘known sources of income’, the allegations against the respondents in the FIR

prima facie seem unsustainable. This view of the High Court has been called into

question in these proceedings.

B Factual and procedural history

4 Since 1992, the first respondent is a Civil Servant of the Indian Revenue

Services11, and was working as Commissioner of Income Tax (Audit -II), Tamil Nadu

& Pondicherry when the FIR was registered against her. She is presently working as

Commissioner of Income Tax (Audit) at Hyderabad. The second respondent is the

spouse of the first respondent, and was also a Civil Servant working in the Indian

Railway Accounts Services till 2009. At the time of the registration of the FIR, he

was and continues to be, at present, an MLA of the State of Andhra Pradesh and

7 “CCS Rules” 8 “RP Act” 9 “CBI” 10 “CBI Manual” 11 “IRS”

PART B

holds the post of the Minister of Education for the State of Andhra Pradesh. He was

also a Member of the Committees on Assurances, SC&ST Welfare and Public

Accounts.

5 The FIR was registered against the respondents by CBI’s Anti-Corruption

Branch12 in Chennai on 20 September 2017. The FIR noted that the “check period”

was between 1 April 2010 and 29 February 2016. The FIR records that it was

registered on the basis of “source information” received by the CBI ACB Chennai on

the same date, at about 4 pm. There are four tabulated statements in the FIR.

Statement A provides that the respondents’ assets at the beginning of the check

period (1 April 2010) were in the amount of Rs 1,35,26,066 while Statement-B

indicates that their assets at the end of the check period (29 February 2016) were

Rs 6,90,51,066. Hence, their assets earned during the check period (i.e., between 1

April 2010 to 29 February 2016) were alleged to be to the tune of Rs 5,55,25,000.

According to Statement-C, the respondents’ income during the check period was Rs

4,84,76,630 while according to Statement-D their expenditure during the check

period was Rs 40,33,322. Hence, the respondents are alleged to have acquired

assets/pecuniary advantage to the extent of Rs 5,95,58,322 (adding the Assets, Rs

5,55,25,000 and Expenditure, Rs 40,33,322) against an Income of Rs 4,84,76,630

earned during the check period. Therefore, their Disproportionate Assets13 during

the check period were computed at Rs 1,10,81,692, which is 22.86 per cent of the

total income earned by them. The computation reflected in the FIR is as follows:

12 “ACB” 13 Calculated by adding the Assets and Expenditure during the check period, and subtracting the Income from it.

PART B

“Calculation of Disproportionate Assets:-

Sl.

No.

Particulars of Assets Amount

(Rs.)

A. Assets at the beginning of the check

period

13,526,066

B. Assets at the end of the check period 69,051,066

C. Assets during the check period (B-A) 55,525,000

D. Income during the check period 48,476,630

E. Expenditure during the check period 4,033,322

F. Assets + Expenditure - Income (DA) 11,081,692

DA percentage 22.86%

”

On the basis of the FIR dated 20 September 2017, the CBI ACB Chennai registered

a case14 against the respondents for offences punishable under Sections 13(2) read

with 13(1)(e) of the PC Act and Section 109 of the IPC.

6 On 5 March 2018, the respondents filed a writ petition before the Telangana

High Court under Article 226 of the Constitution seeking quashing of the FIR. In their

writ petition, the respondents averred that: (i) the FIR is politically motivated since

the second respondent belongs to a rival political party; (ii) the appellant did not

conduct a Preliminary Enquiry before registering the FIR; and (iii) the particulars in

the FIR did not constitute an offence and would not, as they stand, result in the

respondents’ conviction. Further, the petition pointed out inconsistencies in the FIR

where certain assets had been allegedly over-valued while income had been undervalued, without any explanation. Hence, the petition before the High Court urged

that the FIR was liable to be quashed. To support their contentions, the respondents

annexed their Income Tax Returns, immovable property declarations for the period

14 Case RC 21(A)12017

PART B

between 2010 to 2017 made by the first respondent under the CCS Rules, affidavit

filed by the second respondent under the RP Act and Rules thereunder in 2014 and

letters under the CCS Rules explaining the cost/value of construction of their house.

7 In response, the appellant filed a counter-affidavit before the Telangana High

Court where it was stated, inter alia, that: (i) the writ petition was filed belatedly, two

years after the registration of the FIR; (ii) in any case, the writ petition should have

been filed before the Madras High Court since the Court of the Principal Special

Judge for CBI Cases, (VIIIth Additional City Civil Court), Chennai had jurisdiction

over the case and the respondents were aware of this, and the FIR had also been

registered by the CBI ACB at Chennai; (iii) the FIR had been registered on the basis

of source information, and the case was still under investigation; (iv) the

respondents would be provided a chance to explain their case during the

investigation, and there was no requirement to conduct Preliminary Enquiry before

the registration of the FIR; and (v) the respondents’ income and assets cannot be

conclusively ascertained from the documents annexed by them, since their veracity

has to be determined during the investigation. Hence, the appellants urged that the

FIR could not be quashed.

8 As noted earlier in this judgment, the Telangana High Court allowed the

respondents’ writ petition by its impugned judgement dated 11 February 2020 and

quashed the FIR, and set aside all proceedings initiated pursuant to it. The appellant

CBI has now moved this Court for challenging the decision of the High Court.

PART C

C Counsel’s submissions

9 Assailing the judgment of the Telangana High Court, Ms Aishwarya Bhati,

Additional Solicitor General15 appearing on behalf of the CBI has urged the following

submissions:

(i) The Telangana High Court did not have the jurisdiction to entertain the writ

petition filed by the respondents since:

a. The FIR had been registered by the CBI ACB at Chennai; and

b. It had been submitted to the Principal Special Judge for CBI Cases,

(VIIIth Additional City Civil Court), Chennai. Hence, only the Madras

High Court had jurisdiction to entertain the writ petition;

(ii) The CBI Manual does not make it mandatory to conduct a Preliminary

Enquiry before the registration of the FIR and its provisions are directory;

(iii) A Preliminary Enquiry is only conducted when the information received is

not sufficient to register a Regular Case. However, when the information

available is adequate to register a Regular Case since it discloses the

commission of a cognizable offence, no Preliminary Enquiry is necessary.

This will depend on the facts and circumstances of each case, and the

Preliminary Enquiry cannot be made mandatory for all cases of alleged

corruption. This proposition finds support in the judgments of this Court in

15 “ASG”

PART C

Lalita Kumari v. Govt. of UP and others16 (“Lalita Kumari”) and The

State of Telangana v. Managipet17 (“Managipet”);

(iv) The FIR was registered on the basis of reliable source information

collected during the investigation of another case18 in which the first

respondent was one of the accused. During the investigation of that case,

CBI conducted searches at four places belonging to the first respondent

during which documents were seized and she was also examined. On the

basis of such information and documents, the FIR was registered in the

present case. Hence, there was no need for a Preliminary Enquiry;

(v) There is also no need to conduct a Preliminary Enquiry since the

respondents will be provided with an opportunity to explain each and every

acquisition of their assets, and their income and expenditure during the

check period, during the investigation. Hence, it was not necessary to

provide this opportunity before the registration of an FIR (through a

Preliminary Enquiry) since there would have been a risk of tampering with

or destruction of evidence by the accused persons;

(vi) The Investigating Officer has no duty to call for any explanation from the

accused in relation to their assets before registering an FIR against them

since doing so would further lengthen the proceeding. In any case, such

an opportunity is available to the accused persons at the stage of trial.

This principle emerges from the judgments of this Court in K. Veeraswami

16 (2014) 2 SCC 1, paras 31-35, 37-39, 83-86, 89-92, 93-96, 101-105, 106-107, 111-112, 114-119 and 120 17 (2019) 19 SCC 87, paras 33-34 18 RC MA1 2016A 0019-CBl/ACB/Chennai

PART C

v. Union of India19 (“K. Veeraswami”), Union of India and another v.

W.N. Chadha20, State of Maharashtra v. lshwar Piraji Kalpatri21,

Narendar G. Goel v. State of Maharashtra22 and Samaj Parivarthan

Samudhaya v. State of Karnataka23;

(vii) The FIR has been registered against the second respondent under

Section 109 of the IPC as an abettor, being in a fiduciary relationship with

the first respondent as her spouse. As such, no consent of the Speaker

was required before the registration of the FIR against the second

respondent. A general consent has been accorded to the CBI by the State

of Tamil Nadu24 under Section 6 of the Delhi Special Police Establishment

Act 194625 for the offences under the PC Act, which have been notified

under Section 3 of the DSPE Act. The first respondent is an officer of the

Union Government, serving in the IRS;

(viii) While hearing a petition seeking the quashing of an FIR, the High Court

has to consider the contents of the FIR and whether the allegations made

in it prima facie constitute an offence. This is a settled principle, reiterated

recently by this court in Neeharika Infrastructure Pvt. Ltd. v. State of

Maharashtra and others26 (“Neeharika Infrastructure”). In the present

case, the High Court has gone beyond the scope of its powers and

19 (1991) 3 SCC 655, para 75 20 (1993) Supp (4) SCC 260, paras 90-98 21 (1996) 1 SCC 542, paras 16-17 22 (2009) 6 SCC 65, paras 11-16 23 (2012) 7 SCC 407, paras 49-50 and 60 24 Notification dated 2 July 1992 25 “DSPE Act” 26 2021 SCC OnLine SC 315, paras 36-37, 46, 50-51, 57 and 80 (xii-xviii)

PART C

conducted a mini-trial while considering the evidence put forward by the

respondents, in order to quash the FIR;

(ix) The High Court has erred in relying upon the Income Tax Returns and

other documents filed by the respondents while quashing the FIR, since

their veracity as “lawful sources of income” will have to be determined

during the investigation, which has been ongoing for more than two years.

The decision of this Court in State of Karnataka v. J. Jayalalitha27 (“J.

Jayalalitha”) reiterates this principle;

(x) The High Court has solely relied on the documents filed by the

respondents while calculating their income, expenditure and value of

assets to hold that they did not possess any Disproportionate Assets.

However, no explanation has been provided about why the calculations

done by the CBI resulting in the filing of the FIR and during its subsequent

investigation should be overlooked in favor of the respondents’

documents; and

(xi) Pursuant to the stay granted by this Court of the impugned judgment of the

High Court, while issuing notice in the present proceedings, the

investigation has resumed and is nearly complete. Nearly 140 witnesses

have been examined, and 7500 documents have been obtained, and it

has been stated that the investigation would be completed within a period

of two to three months.

27 (2017) 6 SCC 263

PART C

10 Mr Siddharth Luthra and Mr Siddharth Dave, Senior Counsel appearing on

behalf of the respondents opposed the submissions and urged that:

(i) The Telangana High Court had jurisdiction to entertain the writ petition

since:

a. No assets of the respondents are located in the State of Tamil Nadu,

while many of the properties are located in the State of Andhra

Pradesh. The jurisdiction of the High Court under Article 226 of the

Constitution should be exercised liberally while quashing an FIR in

order to prevent the abuse of process of law. This finds support in the

judgments of this Court in Shanti Devi Alia Shanti Mishra v. Union of

India28, Navinchandra N. Majithia v. State of Maharashtra29, Pepsi

Foods Ltd. v. Special Judicial Magistrate30 and Kapil Agarwal v.

Sanjay Sharma31; and

b. In any case, CBI admitted to the jurisdiction of the Telangana High

Court when it did not challenge its initial order dated 24 September

2019 admitting the respondents’ writ petition;

(ii) In view of the decision of this court in Vineet Narain v. Union of India32

(“Vineet Narain”), the provisions of the CBI Manual must be followed

strictly by the CBI. This has been reiterated in Shashikant v. CBI33

28 (2020) 10 SCC 766, para 33 29 (2000) 7 SCC 640, paras 16-18 and 22 30 (1998) 5 SCC 749, para 29 31 (2021) 5 SCC 524, paras 18-18.2 32 (1998) 1 SCC 226, para 58(12) 33 (2007) 1 SCC 630, paras 9, 11, 19 and 25

PART C

(“Shashikant”), CBI v. Ashok Kumar Aggarwal34 (“Ashok Kumar

Aggarwal”) and State of Jharkhand v. Lalu Prasad Yadav35;

(iii) According to para 9.1 of the CBI Manual, a Preliminary Enquiry must be

conducted before an FIR is registered in order to collect sufficient material

which prima facie establishes the commission of an offence. This is

emphasized in the judgments of this Court in Shashikant (supra) and

Nirmal Singh Kahlon v. State of Punjab36 (“Nirmal Singh Kahlon”);

(iv) A Preliminary Enquiry before the registration of an FIR is a necessary

requirement in cases of alleged corruption involving public servants,

including those of Disproportionate Assets, since undue haste would lead

to registration of frivolous and untenable complaints which could affect the

careers of these officials. The judgments of this Court in Yashwant Sinha

v. CBI37 (“Yashwant Sinha”), Charansingh v. State of Maharashtra38

(“Charansingh”), P. Sirajuddin v. State of Madras39 (“P. Sirajuddin”),

Nirmal Singh Kahlon (supra)40 and Lalita Kumari (supra)41 support this

formulation;

(v) The FIR states that it was filed on the basis of source information received

by the CBI ACB Chennai at 4 pm on 20 September 2017, following which

the FIR was registered and sent to the Court of the Principal Special

34 (2014) 14 SCC 295, paras 22-24 35 (2017) 8 SCC 1, paras 67-69 36 (2009) 1 SCC 441 37 (2020) 2 SCC 338, paras 114-115 and 117 38 (2021) 5 SCC 469, paras 10-15 39 (1970) 1 SCC 595, para 17 40 (2009) 1 SCC 441, para 30 41 Paras 89, 92, 117, 120.5 and 120.6(d)

PART C

Judge for CBI Cases, (VIIIth Additional City Civil Court), Chennai at 5 pm

and was received there by 6.25 pm. Hence, it is evident that no verification

or Preliminary Enquiry was conducted before registering the FIR;

(vi) The failure of CBI to conduct a Preliminary Enquiry has adversely affected

the right of defence of the respondents since their right to explain their

income/expenditure/assets has been taken away and an FIR has been

directly registered against them;

(vii) In accordance with the CBI Manual, only the Director of CBI and not any of

its designated officers, has the power to register a case in terms of

Annexure 6A to the CBI Manual or pass an order for a Preliminary

Enquiry. Under para 14.39 of the CBI Manual, an investigation in a

Disproportionate Assets case has to be completed within 18 months, while

it has been ongoing for more than two years in the present case;

(viii) In regard to the second respondent, CBI has no authority to investigate a

complaint since:

a. While the second respondent may be a public servant under the PC

Act, the consent for his prosecution can only be provided by the

Speaker and not the Central Government. Support for this proposition

arises from the judgments of this Court in P.V. Narasimha Rao v.

State (CBI/SPE)42 and State of Kerala v. K. Ajith and others43;

42 (1998) 4 SCC 626, paras 98-99 43 Criminal Appeal No 698 of 2021, paras 24, 33, 36-39 and 61-64

PART C

b. Even according to the decision of this Court in State of West Bengal v.

Committee for Protection of Democratic Rights44, the CBI can

exercise powers and jurisdiction under the PC Act against an MLA or

an MP only on a direction of this Court/High Court or on an order from

the Speaker;

c. The CBI has no authority since under the DSPE Act:

i. No notification has been issued by the Central Government

specifying the offences against an MLA to be investigated by the

CBI (Section 3 of the DSPE Act);

ii. No order has been passed by the Central Government extending

the powers and jurisdiction of CBI in the State of Telangana in

respect of the offences specified under Section 3 (Section 5 of the

DSPE Act);

iii. Consent of the State Government has not been obtained for the

exercise of powers by the CBI in the State of Telangana (Section 6

of the DSPE Act); and

iv. In support of this, reliance is placed upon judgments of this Court in

Mayawati v. Union of India45, M. Balakrishna Reddy v. CBI46,

Central Bureau of Investigation v. State of Rajasthan47 and Kazi

Lhendup Dorji v. CBI48;

44 (2010) 3 SCC 571, para 68 45 (2012) 8 SCC 106, paras 29-30 46 (2008) 4 SCC 409, para 19 47 (1996) 9 SCC 735, para 26 48 1994 Supp (2) SCC 116, para 13

PART C

(ix) The FIR also deserves to be quashed since:

a. It does not differentiate in relation to the separate role of the two

respondents and clubs the charges against them, which vitiates their

independent right of defense. Further, the FIR has been filed against

the second respondent in Chennai even though he has never held any

public office there and no cause of action arises there; and

b. The complaint is completely false since the respondents do not have

any Disproportionate Assets in the check period but rather have an

excess of income. To support this, the following chart has been filed

along with the counter-affidavit of the first respondent:

SL Description Amount as

per FIR (in

Rs.)

Actual

Amount (in

Rs.)

Revised DA (in

Rs.)

A1/A2

Disproportionate

Assets ● Check Period

01.04.2010 –

29.02.2016

1,10,81,692 - -

1. STATEMENT B SL.NO.

6 & 7

CBI has valued the

Construction cost of

Sl.6-7 property of STMB as Rs.5,15,50,000/-

[RS. 2,59,50,000 + RS.

2,56,00,000].

Even as per the STM B

SL6-7, the value is

taken from the report

dated 11.03.2016

submitted by A1 to her

department vide letter

dated 14.03.2016. ● The

total value of

construction as per the

said report is

Rs.4,14,21,800/-

5,15,50,000 4,29,71,800 1,10,81,692 -

85,78,200

=25,03,492

PART C

[Rs.4,14,21,800 +

Rs.15,50,000 =

Rs.4,29,71,800]

[Rs.5,15,50,000 -

Rs.4,29,71,800

= Rs.85,78,200]

2. STM. B SL-26

Double Entry of

Rs.8,00,000/- in re

Bangalore property, sold

during the check period

(admitted by CBI) is

wrongly shown as

assets at the end of

check period i.e., in Stm

C Sl-9.

8,00,000 - 8,00,000 25,03,492 -

8,00,000

=17,03,492

3. STM. B SL-31

Double Entry in re. for

purchase and erection

of one Oscan escalator

at Jubilee Prop. Already

part of overall valuation/

construction cost for

Stm-B Sl. 6 &7)

10,00,000 - 10,00,000 17,03,492 -

10,00,000

=7,03,492

4. STM. C SL-9

Arbitrary Deduction in re

Bangalore property (

see Sr No. 26 of STM.

B) was admittedly sold

for a sale consideration

of 1 cr, but only Rs.72.5

Lks is shown as sale

price in STM. C.

[Rs. 1,00,00,000 –

Rs.72,50,000 =

Rs.27,50,000]

72,50,000 1,00,00,000 7,03,492 -

27,50,000

= -20,46,508

Thus, Asset is not

disproportionate to

income by:

- 20,46,508

(x) The High Court has not solely relied upon the documents produced by the

respondents, while ignoring the material elicited by the CBI through its

investigation. The documents produced by the respondent (Income Tax

Returns, et al) are lawful sources to determine the source of one’s income,

PART C

and can be relied upon while determining whether a ‘public servant’ under

Section 13(1)(e) of the PC Act has accumulated Disproportionate Assets

in comparison to their lawful income. Hence, the High Court could have

legitimately assessed the case of Disproportionate Assets against the

respondents by relying on such documents. In support of this proposition,

reliance is placed upon judgments of this Court in Harshendra Kumar D.

v. Rebatilata Koley49, Suresh Kumar Goyal v. State of U.P.50, Pooja

Ravinder Devidasani v. State of Maharashtra51, Kedari Lal v. State of

M.P.52 (“Kedari Lal”) and State of M.P. v. Mohanlal Soni53; and

(xi) The FIR deserved to be quashed in terms of the guidelines enunciated in

paragraph 102 (1, 3, 5, 6 and 7) of this Court’s judgment in State of

Haryana & others v. Bhajan Lal54 (“Bhajan Lal”).

11 The rival submissions now fall for our consideration. Based on the

submissions, this Court is called upon to decide two questions: (i) whether the CBI is

mandatorily required to conduct a Preliminary Enquiry before the registration of an

FIR in every case involving claims of alleged corruption against public servants; and

(ii) independent of the first question, whether the judgment of the High Court to

quash the FIR can be sustained in the present case.

49 (2011) 3 SCC 351, paras 25-26 50 (2019) 14 SCC 318, para 12 51 (2014) 16 SCC 1, paras 15, 17, 23, 27-28 and 30 52 (2015) 14 SCC 505, paras 10, 12 and 15-16 53 (2000) 6 SCC 338, paras 4, 6 and 11 54 (1992) Sup 1 SCC 335

PART D

D Whether a Preliminary Inquiry is mandatory before registering an FIR

D.1 Precedents of this Court

12 Before proceeding with our analysis of the issue, it is important to understand

what previous judgements of this Court have stated on the issue of whether CBI is

required to conduct a Preliminary Enquiry before the registration of an FIR,

especially in cases of alleged corruption against public servants.

13 The first of these is a judgment of a two Judge Bench in P Sirajuddin (supra),

in which it was observed that before a public servant is charged with acts of

dishonesty amounting to serious misdemeanor, some suitable preliminary enquiry

must be conducted in order to obviate incalculable harm to the reputation of that

person. Justice G K Mitter held that:

“17…Before a public servant, whatever be his status, is

publicly charged with acts of dishonesty which amount

to serious misdemeanour or misconduct of the type

alleged in this case and a first information is lodged

against him, there must be some suitable preliminary

enquiry into the allegations by a responsible officer. The

lodging of such a report against a person, specially one who

like the appellant occupied the top position in a department,

even if baseless, would do incalculable harm not only to the

officer in particular but to the department he belonged to, in

general...”

(emphasis supplied)

14 The above decision was followed by another two Judge Bench in Nirmal

Singh Kahlon (supra), where it was observed that in accordance with the CBI

PART D

Manual, the CBI may only be held to have established a prima facie case upon the

completion of a Preliminary Enquiry. Justice S B Sinha held thus:

“30. Lodging of a first information report by CBI is governed

by a manual. It may hold a preliminary inquiry; it has been

given the said power in Chapter VI of the CBI Manual. A

prima facie case may be held to have been established only

on completion of a preliminary enquiry.”

15 The most authoritative pronouncement of law emerges from the decision of a

Constitution Bench in Lalita Kumari (supra). The issue before the Court was

whether “a police officer is bound to register a first information report (FIR) upon

receiving any information relating to commission of a cognizable offence under

Section 154 of the Code of Criminal Procedure 1973…or the police officer has the

power to conduct a ‘preliminary inquiry’ in order to test the veracity of such

information before registering the same”. Answering this question on behalf of the

Bench, Chief Justice P Sathasivam held that under Section 154 of the Code of

Criminal Procedure 197355, a police officer need not conduct a preliminary enquiry

and must register an FIR when the information received discloses the commission of

a cognizable offence. Specifically with reference to the provisions of the CBI Manual,

the decision noted:

“89. Besides, the learned Senior Counsel relied on the special

procedures prescribed under the CBI Manual to be read into

Section 154. It is true that the concept of “preliminary

inquiry” is contained in Chapter IX of the Crime Manual

of CBI. However, this Crime Manual is not a statute and

has not been enacted by the legislature. It is a set of

administrative orders issued for internal guidance of the

55 “CrPC”

PART D

CBI officers. It cannot supersede the Code. Moreover, in

the absence of any indication to the contrary in the Code

itself, the provisions of the CBI Crime Manual cannot be

relied upon to import the concept of holding of

preliminary inquiry in the scheme of the Code of Criminal

Procedure. At this juncture, it is also pertinent to submit that

CBI is constituted under a special Act namely, the Delhi

Special Police Establishment Act, 1946 and it derives its

power to investigate from this Act.”

(emphasis supplied)

However, the Court was also cognizant of the possible misuse of the powers under

criminal law resulting in the registration of frivolous FIRs. Hence, it formulated

“exceptions” to the general rule that an FIR must be registered immediately upon the

receipt of information disclosing the commission of a cognizable offence. The

Constitution Bench held:

“115. Although, we, in unequivocal terms, hold that Section

154 of the Code postulates the mandatory registration of FIRs

on receipt of all cognizable offences, yet, there may be

instances where preliminary inquiry may be required owing to

the change in genesis and novelty of crimes with the passage

of time…

[…]

117. In the context of offences relating to corruption, this

Court in P. Sirajuddin [P. Sirajuddin v. State of Madras,

(1970) 1 SCC 595 : 1970 SCC (Cri) 240] expressed the

need for a preliminary inquiry before proceeding against

public servants.

[…]

119. Therefore, in view of various counterclaims regarding

registration or non-registration, what is necessary is only

that the information given to the police must disclose the

commission of a cognizable offence. In such a situation,

registration of an FIR is mandatory. However, if no

cognizable offence is made out in the information given,

PART D

then the FIR need not be registered immediately and

perhaps the police can conduct a sort of preliminary

verification or inquiry for the limited purpose of

ascertaining as to whether a cognizable offence has been

committed. But, if the information given clearly mentions

the commission of a cognizable offence, there is no other

option but to register an FIR forthwith. Other

considerations are not relevant at the stage of registration of

FIR, such as, whether the information is falsely given,

whether the information is genuine, whether the information is

credible, etc. These are the issues that have to be verified

during the investigation of the FIR. At the stage of registration

of FIR, what is to be seen is merely whether the information

given ex facie discloses the commission of a cognizable

offence. If, after investigation, the information given is found

to be false, there is always an option to prosecute the

complainant for filing a false FIR.”

(emphasis supplied)

The judgment provides the following conclusions:

“120. In view of the aforesaid discussion, we hold:

120.1. The 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.

120.2. 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.

[…]

120.5. 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.

120.6. 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:

PART D

[…]

(d) Corruption cases

[…]

The aforesaid are only illustrations and not exhaustive of all

conditions which may warrant preliminary inquiry.”

(emphasis supplied)

The Constitution Bench thus held that a Preliminary Enquiry is not mandatory when

the information received discloses the commission of a cognizable offence. Even

when it is conducted, the scope of a Preliminary Enquiry is not to ascertain the

veracity of the information, but only whether it reveals the commission of a

cognizable offence. The need for a Preliminary Enquiry will depend on the facts and

circumstances of each case. As an illustration, “corruption cases” fall in that

category of cases where a Preliminary Enquiry “may be made”. The use of the

expression “may be made” goes to emphasize that holding a preliminary enquiry is

not mandatory. Dwelling on the CBI Manual, the Constitution Bench held that: (i) it is

not a statute enacted by the legislature; and (ii) it is a compendium of administrative

orders for the internal guidance of the CBI.

16 The judgment in Lalita Kumari (supra) was analyzed by a three Judge Bench

of this Court in Yashwant Sinha (supra) where the Court refused to grant the relief

of registration of an FIR based on information submitted by the appellant-informant.

In his concurring opinion, Justice K M Joseph described that a barrier to granting the

relief of registration of an FIR against a public figure would be the observations of

PART D

this Court in Lalita Kumari (supra) noting that a Preliminary Enquiry may be

desirable before doing so. Justice Joseph observed:

“108. Para 120.6 [of Lalita Kumari] deals with the type of

cases in which preliminary inquiry may be made. Corruption

cases are one of the categories of cases where a preliminary

inquiry may be conducted…

[…]

110. In para 117 of Lalita Kumari [Lalita Kumari v. State of

U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , this Court

referred to the decision in P. Sirajuddin v. State of Madras [P.

Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC

(Cri) 240] and took the view that in the context of offences

related to corruption in the said decision, the Court has

expressed a need for a preliminary inquiry before proceeding

against public servants.

[…]

112. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2

SCC 1 : (2014) 1 SCC (Cri) 524] , one of the contentions

which was pressed before the Court was that in certain

situations, preliminary inquiry is necessary. In this regard,

attention of the Court was drawn to CBI Crime Manual…

[…]

114. The Constitution Bench in Lalita Kumari [Lalita

Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC

(Cri) 524] , had before it, the CBI Crime Manual. It also

considered the decision of this Court in P. Sirajuddin [P.

Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970

SCC (Cri) 240] which declared the necessity for

preliminary inquiry in offences relating to corruption.

Therefore, the petitioners may not be justified in

approaching this Court seeking the relief of registration

of an FIR and investigation on the same as such. This is

for the reason that one of the exceptions where

immediate registration of FIR may not be resorted to,

would be a case pointing fingers at a public figure and

raising the allegation of corruption. This Court also has

permitted preliminary inquiry when there is delay, laches in

initiating criminal prosecution, for example, over three

PART D

months. A preliminary inquiry, it is to be noticed in para 120.7,

is to be completed within seven days.”

(emphasis supplied)

17 The decision of a two Judge Bench in Managipet (supra) thereafter has noted

that while the decision in Lalita Kumari (supra) held that a Preliminary Enquiry was

desirable in cases of alleged corruption, that does not vest a right in the accused to

demand a Preliminary Enquiry. Whether a Preliminary Enquiry is required or not will

depends on the facts and circumstances of each case, and it cannot be said to be

mandatory requirement without which a case cannot be registered against the

accused in corruption cases. Justice Hemant Gupta held thus:

“28. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014)

2 SCC 1 : (2014) 1 SCC (Cri) 524] , 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…

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…

30. It must be pointed out 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 [Lalita Kumari v.

PART D

State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524]

does not state that proceedings cannot be initiated

against an accused without conducting a preliminary

inquiry.

[…]

32…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 [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 :

(2014) 1 SCC (Cri) 524] .

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 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 in State of Haryana v.

Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1)

SCC 335 : 1992 SCC (Cri) 426] 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

fides 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 [Lalita Kumari v. State of U.P.,

PART D

(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] 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 information disclosing a cognizable

offence to the satisfaction of the person recording the

FIR is sufficient.”

(emphasis supplied)

18 In Charansingh (supra), the two Judge bench was confronted with a

challenge to a decision to hold a Preliminary Enquiry. The court adverted to the ACB

Manual in Maharashtra and held that a statement provided by an individual in an

“open inquiry” in the nature of a Preliminary Enquiry would not be confessional in

nature and hence, the individual cannot refuse to appear in such an inquiry on that

basis. Justice M R Shah, writing for the two Judge bench consisting also of one of

us (Justice D Y Chandrachud) held:

“11. However, whether in a case of a complaint against a

public servant regarding accumulating the assets

disproportionate to his known sources of income, which can

be said to be an offence under Section 13(1)(e) of the

Prevention of Corruption Act, 1988, an enquiry at pre-FIR

stage is permissible or not and/or it is desirable or not, if any

decision is required, the same is governed by the decision of

this Court in Lalita Kumari [Lalita Kumari v. State of U.P.,

(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] .

11.1. While considering the larger question, whether police is

duty-bound to register an FIR and/or it is mandatory for

registration of FIR on receipt of information disclosing a

cognizable offence and whether it is mandatory or the police

officer has option, discretion or latitude of conducting

preliminary enquiry before registering FIR, this Court in Lalita

Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 :

PART D

(2014) 1 SCC (Cri) 524] has observed that it is mandatory to

cognizable offence and it is the general rule. However, while

holding so, this Court has also considered the

situations/cases in which preliminary enquiry is

permissible/desirable. While holding that the registration of

FIR is mandatory under Section 154, if the information

discloses commission of a cognizable offence and no

preliminary enquiry is permissible in such a situation and

the same is the general rule and must be strictly

complied with, this Court has carved out certain

situations/cases in which the preliminary enquiry is held

to be permissible/desirable before registering/lodging of

an FIR. It is further observed that if the information

received does not disclose a cognizable offence but

indicates the necessity for an inquiry, a preliminary

enquiry may be conducted to ascertain whether

cognizable offence is disclosed or not. It is observed that

as to what type and in which cases the preliminary

enquiry is to be conducted will depend upon the facts

and circumstances of each case.

[…]

14. In the context of offences relating to corruption, in para

117 in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2

SCC 1 : (2014) 1 SCC (Cri) 524] , this Court also took note of

the decision of this Court in P. Sirajuddin v. State of Madras

[P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970

SCC (Cri) 240] in which case this Court expressed the need

for a preliminary enquiry before proceeding against public

servants.

[…]

15.1. Thus, an enquiry at pre-FIR stage is held to be

permissible and not only permissible but desirable, more

particularly in cases where the allegations are of

misconduct of corrupt practice acquiring the

assets/properties disproportionate to his known sources

of income. After the enquiry/enquiry at pre-registration of FIR

stage/preliminary enquiry, if, on the basis of the material

collected during such enquiry, it is found that the complaint is

vexatious and/or there is no substance at all in the complaint,

the FIR shall not be lodged. However, if the material

discloses prima facie a commission of the offence

alleged, the FIR will be lodged and the criminal

PART D

proceedings will be put in motion and the further

investigation will be carried out in terms of the Code of

Criminal Procedure. Therefore, such a preliminary

enquiry would be permissible only to ascertain whether

cognizable offence is disclosed or not and only thereafter

FIR would be registered. Therefore, such a preliminary

enquiry would be in the interest of the alleged accused

also against whom the complaint is made.

15.2. Even as held by this Court in CBI v. Tapan Kumar Singh

[CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC

(Cri) 1305] , a GD entry recording the information by the

informant disclosing the commission of a cognizable offence

can be treated as FIR in a given case and the police has the

power and jurisdiction to investigate the same. However, in

an appropriate case, such as allegations of misconduct of

corrupt practice by a public servant, before lodging the first

information report and further conducting the investigation, if

the preliminary enquiry is conducted to ascertain whether a

cognizable offence is disclosed or not, no fault can be found.

Even at the stage of registering the FIR, what is required to

be considered is whether the information given discloses the

commission of a cognizable offence and the information so

lodged must provide a basis for the police officer to suspect

the commission of a cognizable offence. At this stage, it is

enough if the police officer on the basis of the information

given suspects the commission of a cognizable offence, and

not that he must be convinced or satisfied that a cognizable

offence has been committed. Despite the proposition of law

laid down by this Court in a catena of decisions that at

the stage of lodging the first information report, the

police officer need not be satisfied or convinced that a

cognizable offence has been committed, considering the

observations made by this Court in P. Sirajuddin [P.

Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970

SCC (Cri) 240] and considering the observations by this

Court in Lalita Kumari [Lalita Kumari v. State of U.P.,

(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] before lodging

the FIR, an enquiry is held and/or conducted after

following the procedure as per Maharashtra State AntiCorruption & Prohibition Intelligence Bureau Manual, it

cannot be said that the same is illegal and/or the police

officer, Anti-Corruption Bureau has no jurisdiction and/or

authority and/or power at all to conduct such an enquiry

at pre-registration of FIR stage.”

(emphasis supplied)

PART D

19 Hence, all these decisions do not mandate that a Preliminary Enquiry must be

conducted before the registration of an FIR in corruption cases. An FIR will not stand

vitiated because a Preliminary Enquiry has not been conducted. The decision in

Managipet (supra) dealt specifically with a case of Disproportionate Assets. In that

context, the judgment holds that where relevant information regarding prima facie

allegations disclosing a cognizable offence is available, the officer recording the FIR

can proceed against the accused on the basis of the information without conducting

a Preliminary Enquiry.

20 This conclusion is also supported by the judgment of another Constitution

Bench in K. Veeraswami (supra). The judgment was in context of Section 5(1)(e) of

the old Prevention of Corruption Act 1947, which is similar to Section 13(1)(e) of the

PC Act. It was argued that: (i) a public servant must be afforded an opportunity to

explain the alleged Disproportionate Assets before an Investigating Officer; (ii) this

must then be included and explained by the Investigating Officer while filing the

charge sheet; and (iii) the failure to do so would render the charge sheet invalid.

Rejecting this submission, the Constitution Bench held that doing so would elevate

the Investigating Officer to the role of an enquiry officer or a Judge and that their role

was limited only to collect material in order to ascertain whether the alleged offence

has been committed by the public servant. In his opinion for himself and Justice

Venkatachaliah, Justice K Jagannatha Shetty held thus:

“75…since the legality of the charge-sheet has been

impeached, we will deal with that contention also. Counsel

laid great emphasis on the expression “for which he cannot

PART D

satisfactorily account” used in clause (e) of Section 5(1) of the

Act. He argued that that term means that the public servant is

entitled to an opportunity before the Investigating Officer to

explain the alleged disproportionality between assets and the

known sources of income. The Investigating Officer is

required to consider his explanation and the charge-sheet

filed by him must contain such averment. The failure to

mention that requirement would vitiate the charge-sheet and

renders it invalid. This submission, if we may say so,

completely overlooks the powers of the Investigating Officer.

The Investigating Officer is only required to collect material to

find out whether the offence alleged appears to have been

committed. In the course of the investigation, he may

examine the accused. He may seek his clarification and if

necessary he may cross check with him about his known

sources of income and assets possessed by him. Indeed, fair

investigation requires as rightly stated by Mr A.D. Giri,

learned Solicitor General, that the accused should not be kept

in darkness. He should be taken into confidence if he is

willing to cooperate. But to state that after collection of all

material the Investigating Officer must give an

opportunity to the accused and call upon him to account

for the excess of the assets over the known sources of

income and then decide whether the accounting is

satisfactory or not, would be elevating the Investigating

Officer to the position of an enquiry officer or a judge.

The Investigating Officer is not holding an enquiry

against the conduct of the public servant or determining

the disputed issues regarding the disproportionality

between the assets and the income of the accused. He

just collects material from all sides and prepares a report

which he files in the court as charge-sheet.”

(emphasis supplied)

Therefore, since an accused public servant does not have a right to be afforded a

chance to explain the alleged Disproportionate Assets to the Investigating Officer

before the filing of a charge sheet, a similar right cannot be granted to the accused

before the filing of an FIR by making a Preliminary Enquiry mandatory.

PART D

21 Having revisited the precedents of this Court, it is now necessary to consider

the provisions of the CBI Manual.

D.2 CBI Manual

22 In the judgment in Vineet Narain (supra), a three Judge Bench of this Court

noted that the provisions of the CBI Manual must be followed by the officers of the

CBI strictly, and disciplinary action should be taken against those who deviate from

them. Chief Justice J S Verma noted:

“58. As a result of the aforesaid discussion, we hereby direct

as under:

I. Central Bureau of Investigation (CBI) and Central Vigilance

Commission (CVC)

[…]

12. The CBI Manual based on statutory provisions of the

CrPC provides essential guidelines for the CBI's functioning.

It is imperative that the CBI adheres scrupulously to the

provisions in the Manual in relation to its investigative

functions, like raids, seizure and arrests. Any deviation from

the established procedure should be viewed seriously and

severe disciplinary action taken against the officials

concerned.”

23 In the later judgment of a two judge Bench in Shashikant (supra), it was held

that the CBI cannot be faulted for conducting a Preliminary Enquiry in accordance

with the CBI Manual. Justice S B Sinha held:

“9...It is also not disputed that the CBI Manual was made by

the Central Government providing for detailed procedure as

PART D

regards the mode and manner in which complaints against

public servants are to be dealt with.

[…]

11. The CBI Manual provides for a preliminary inquiry. By

reason thereof a distinction has been made between a

preliminary inquiry and a regular case. A preliminary inquiry in

terms of para 9.1 of the CBI Manual may be converted into a

regular case as soon as sufficient material becomes available

to show that prima facie there has been commission of a

cognizable offence.

[…]

19. When an anonymous complaint is received, no

investigating officer would initiate investigative process

immediately thereupon. It may for good reasons carry out

a preliminary enquiry to find out the truth or otherwise of

the allegations contained therein.

[…]

25…The procedure laid down in the CBI Manual and in

particular when it was required to inquire into the

allegation of the corruption on the part of some public

servants, recourse to the provisions of the Manual

cannot be said to be unfair…”

(emphasis supplied)

24 In Ashok Kumar Aggarwal (supra), a two judge Bench observed that the

provisions of the CBI Manual require strict compliance. Justice B S Chauhan held:

“24…the CBI Manual, being based on statutory provisions of

CrPC, provides for guidelines which require strict compliance.

More so, in view of the fact that the ratio of the judgment of

this Court in M.M. Rajendran [State of T.N. v. M.M.

Rajendran, (1998) 9 SCC 268 : 1998 SCC (Cri) 1000] has

been incorporated in the CBI Manual, the CBI Manual itself is

the best authority to determine the issue at hand. The court

has to read the relevant provisions of the CBI Manual alone

and no judgment of this Court can be a better guiding factor

under such a scenario.”

PART D

25 Hence, it is necessary to scrutinize the provisions of the CBI Manual. Chapter

8 of the CBI Manual is titled “Complaints and Source Information”. Para 8.1 notes

that the CBI must register every complaint it receives, whatever be its source, before

it starts verifying it. Para 8.6(ii) provides that verification can be undertaken for

“[c]omplaints containing specific and definite allegations involving corruption or

serious misconduct against public servants etc., falling within the ambit of CBI,

which can be verified”. Paras 8.8-8.9 describe the process of verification where the

officers are to examine records informally and discreetly without making written

requisitions, and that this process ordinarily should not take more than three months

but can take up to four months for complicated cases. Para 8.24 indicates that the

officer entrusted with verification must submit a detailed report at the end of the

process with specific recommendations, including whether a Preliminary Enquiry is

required or if a Regular Case should be registered directly.

26 The FIR in the present case has been registered on the basis of “Source

Information”. Both during the course of the hearing and in the affidavit filed by CBI, it

has been explained that CBI found information and documents while investigating

another case. Para 8.26 of the CBI Manual notes that every officer of the CBI can

develop source information “regarding graft, misuse of official position, possession

of disproportionate assets, fraud, embezzlement, serious economic offences, illegal

trading in narcotics and psychotropic substances, counterfeiting of currency,

smuggling of antiques, acts endangering wildlife and environment, cybercrimes,

serious frauds of banking/financial institutions, smuggling of arms and ammunition,

PART D

forgery of passports, etc. and other matters falling within the purview of CBI and

verify the same to ascertain whether any prima facie material is available to

undertake an open probe”. However, while doing so, they are to keep their superior

officer ‘well informed’. Further, para 8.27 describes the process once such “source

information” is developed and submitted to the superior officer. It reads as follows:

“8.27. The source information once developed must be

submitted in writing giving all available details with specific

acts of omissions and commissions and copies of documents

collected discreetly. The internal vigilance enquiries or

departmental enquiry reports should normally not be used as

basis for submitting the source information. The SP

concerned after satisfying himself that there is prima facie

material meriting action by CBI and further verification is likely

to result in registration of a regular case, would order

verification if it falls within his competence. In the cases which

are within the competence of higher officers, he will forward

his detailed comments to the DIG and obtain orders from

superior officer competent to order registration. The

verification of SIRs must begin only after the competent

authority has approved its registration. At this stage a regular

SIR number will be assigned to the SIR which will also be

entered in the source information sub-module of Crimes

Module with all other details.”

The superior officer thus has to verify whether the developed “source information”

prima facie would result in the registration of a case by the CBI; if yes, they then

have to direct the verification of such information. Verification is governed by para

8.29, which speaks of a process similar to para 8.9. Para 8.32 provides that

verification of “source information” shall be completed within three months and

approval of the Competent Authority is required to carry out verification beyond that

period. Similar to para 8.24, under para 8.33, the officer entrusted with verification

PART D

has to submit a report with specific recommendations on whether a Preliminary

Enquiry is required or if a Regular Case should be registered directly.

27 If a Preliminary Enquiry is necessary, it is covered by Chapter 9 of the CBI

Manual. Para 9.1 notes:

“9.1 When, a complaint is received or information is

available which may, after verification as enjoined in this

Manual, indicate serious misconduct on the part of a

public servant but is not adequate to justify registration

of a regular case under the provisions of Section 154

Cr.P.C., a Preliminary Enquiry may be registered after

obtaining approval of the Competent Authority…When

the verification of a complaint and source information reveals

commission of a prima facie cognizable offence, a Regular

Case is to be registered as is enjoined by law. A PE may be

converted into RC as soon as sufficient material becomes

available to show that prima facie there has been commission

of a cognizable offence. When information available is

adequate to indicate commission of cognizable offence

or its discreet verification leads to similar conclusion, a

Regular Case must be registered instead of a Preliminary

Enquiry. It is, therefore, necessary that the SP must

carefully analyze material available at the time of

evaluating the verification report submitted by Verifying

Officer so that registration of PE is not resorted to where

a Regular Case can be registered…”

(emphasis supplied)

Hence, two distinct principles emerge from the above: (i) a Preliminary Enquiry is

registered when information (received from a complaint or “source information”) after

verification indicates serious misconduct on part of a public servant but is not

enough to justify the registration of a Regular Case; and (ii) when the information

available or after its secret verification reveals the commission of a cognizable

PART D

offence, a Regular Case has to be registered instead of a Preliminary Enquiry being

resorted to necessarily.

28 Paras 9.7-9.8 note that once it is decided that a Preliminary Enquiry is

required, a “PE Registration Report” is required to be prepared. Para 9.10 specifies

that in cases of corruption, the Preliminary Enquiry should be limited to a scrutiny of

records and talking to the bare minimum persons. Para 9.11 notes that the records

should be collected under a proper receipt memo (unlike the process of verification)

and that the statements herein should be collected in the same manner as they

would be at the investigation stage. However, it is clarified that notices under

Sections 91 and 160 of the CrPC shall not be resorted to during a Preliminary

Enquiry. Paras 9.12-9.14 then discuss the procedure for converting a Preliminary

Enquiry into a Regular Case, which has to happen the moment sufficient material is

available which discloses the commission of a cognizable offence which could result

in result in prosecution. Finally, para 9.16 provides that a Preliminary Enquiry must

be completed within three months.

D.3 Analysis

29 The precedents of this Court and the provisions of the CBI Manual make it

abundantly clear that a Preliminary Enquiry is not mandatory in all cases which

involve allegations of corruption. The decision of the Constitution Bench in Lalita

Kumari (supra) holds that if the information received discloses the commission of a

cognizable offence at the outset, no Preliminary Enquiry would be required. It also

PART D

clarified that the scope of a Preliminary Enquiry is not to check the veracity of the

information received, but only to scrutinize whether it discloses the commission of a

cognizable offence. Similarly, para 9.1 of the CBI Manual notes that a Preliminary

Enquiry is required only if the information (whether verified or unverified) does not

disclose the commission of a cognizable offence. Even when a Preliminary Enquiry

is initiated, it has to stop as soon as the officer ascertains that enough material has

been collected which discloses the commission of a cognizable offence. A similar

conclusion has been reached by a two Judge Bench in Managipet (supra) as well.

Hence, the proposition that a Preliminary Enquiry is mandatory is plainly contrary to

law, for it is not only contrary to the decision of the Constitution Bench in Lalita

Kumari (supra) but would also tear apart the framework created by the CBI Manual.

30 This view is also supported by the decision of a three judge Bench of this

Court in Union of India v. State of Maharashtra56, which reversed the decision of a

two Judge Bench in Subhash Kashinath Mahajan v. State of Maharashtra57 which

had, inter alia, held that “a preliminary enquiry may be conducted by the DSP

concerned to find out whether the allegations make out a case under the [Scheduled

Cases and Scheduled Tribes (Prevention of Atrocities) Act 198958] and that the

allegations are not frivolous or motivated”. However, in the three Judge Bench

decision, it was held that such a direction was impermissible since neither the CrPC

nor the Atrocities Act mandate a preliminary inquiry. Justice Arun Mishra held:

56 (2020) 4 SCC 761 57 (2018) 6 SCC 454 58 “Atrocities Act”

PART D

“68. The direction has also been issued that the DSP should

conduct a preliminary inquiry to find out whether the

allegations make out a case under the Atrocities Act, and that

the allegations are not frivolous or motivated. In case a

cognizable offence is made out, the FIR has to be

outrightly registered, and no preliminary inquiry has to

be made as held in Lalita Kumari [Lalita Kumari v. State

of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] by a

Constitution Bench. There is no such provision in the

Code of Criminal Procedure for preliminary inquiry or

under the SC/ST Act, as such direction is impermissible.

Moreover, it is ordered to be conducted by the person of the

rank of DSP. The number of DSP as per stand of the Union of

India required for such an exercise of preliminary inquiry is

not available. The direction would mean that even if a

complaint made out a cognizable offence, an FIR would not

be registered until the preliminary inquiry is held. In case a

preliminary inquiry concludes that allegations are false or

motivated, FIR is not to be registered, in such a case how a

final report has to be filed in the Court. Direction 79.4 cannot

survive for the other reasons as it puts the members of the

Scheduled Castes and Scheduled Tribes in a

disadvantageous position in the matter of procedure vis-à-vis

to the complaints lodged by members of upper caste, for

latter no such preliminary investigation is necessary. In that

view of the matter it should not be necessary to hold

preliminary inquiry for registering an offence under the

Atrocities Act, 1989.”

(emphasis supplied)

31 In a recent decision of a two Judge Bench in Vinod Dua v. Union of India

and others59, a direction of the Court was sought for requiring “that henceforth FIRs

against persons belonging to the media with at least 10 years standing be not

registered unless cleared by a committee…”. In refusing such a prayer, the Court

observed that doing so would be akin to instituting a preliminary inquiry which was

59 2021 SCC OnLine SC 414

PART D

not mandated by the statutory framework. Justice U U Lalit, speaking for the Bench

held:

“101…the directions issued in Dr. Subhash Kashinath

Mahajan regarding holding of a preliminary inquiry were not

found consistent with the statutory framework. The second

prayer made in the Writ Petition is asking for the constitution

of the Committee completely outside the scope of the

statutory framework. Similar such exercise of directing

constitution of a Committee was found inconsistent with the

statutory framework in the decisions discussed above…Any

relief granted in terms of second prayer would certainly, in our

view, amount to encroachment upon the field reserved for the

legislature. We have, therefore, no hesitation in rejecting the

prayer and dismissing the Writ Petition to that extent.”

32 In view of the above discussion, we hold that since the institution of a

Preliminary Enquiry in cases of corruption is not made mandatory before the

registration of an FIR under the CrPC, PC Act or even the CBI Manual, for this Court

to issue a direction to that affect will be tantamount to stepping into the legislative

domain. Hence, we hold that in case the information received by the CBI, through a

complaint or a “source information” under Chapter 8, discloses the commission of a

cognizable offence, it can directly register a Regular Case instead of conducting a

Preliminary Enquiry, where the officer is satisfied that the information discloses the

commission of a cognizable offence.

33 The above formulation does not take away from the value of conducting a

Preliminary Enquiry in an appropriate case. This has been acknowledged by the

decisions of this Court in P Sirajuddin (supra), Lalita Kumari (supra) and

Charansingh (supra). Even in Vinod Dua (supra), this Court noted that “[a]s a

PART E

matter of fact, the accepted norm - be it in the form of CBI Manual or like

instruments is to insist on a preliminary inquiry”. The registration of a Regular Case

can have disastrous consequences for the career of an officer, if the allegations

ultimately turn out to be false. In a Preliminary Enquiry, the CBI is allowed access to

documentary records and speak to persons just as they would in an investigation,

which entails that information gathered can be used at the investigation stage as

well. Hence, conducting a Preliminary Enquiry would not take away from the ultimate

goal of prosecuting accused persons in a timely manner. However, we once again

clarify that if the CBI chooses not to hold a Preliminary Enquiry, the accused cannot

demand it as a matter of right. As clarified by this Court in Managipet (supra), the

purpose of Lalita Kumari (supra) noting that a Preliminary Enquiry is valuable in

corruption cases was not to vest a right in the accused but to ensure that there is no

abuse of the process of law in order to target public servants.

E Whether the FIR should be quashed

E.1 Scope of review before the High Court

34 Having answered the first question in the negative, that leaves the court with

the second question of whether the FIR should be quashed in the present case. In

order to answer this, we must first consider the scope of the review that a High Court

exercises while entertaining a petition for quashing of an FIR under Article 226 of the

Constitution or Section 482 of the CrPC.

PART E

35 The well settled test is whether, as they stand, the allegations contained in the

FIR make out an offence. The locus classicus on this issue is the judgment of a two

Judge Bench of this Court in Bhajan Lal (supra), where the Court provided an

illustrative set of situations where the High Court may exercise its jurisdiction under

Article 226 of the Constitution or Section 482 of the CrPC. Delivering the judgment,

Justice S Ratnavel Pandian held:

“102. In the backdrop of the interpretation of the various

relevant provisions of the Code under Chapter XIV and of the

principles of law enunciated by this Court in a series of

decisions relating to the exercise of the extraordinary power

under Article 226 or the inherent powers under Section 482 of

the Code which we have extracted and reproduced above, we

give the following categories of cases by way of illustration

wherein such power could be exercised either to prevent

abuse of the process of any court or otherwise to secure the

ends of justice, though it may not be possible to lay down any

precise, clearly defined and sufficiently channelized and

inflexible guidelines or rigid formulae and to give an

exhaustive list of myriad kinds of cases wherein such power

should be exercised.

(1) Where the allegations made in the first information report

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.

(2) Where the allegations in the first information report and

other materials, if any, accompanying the FIR do not disclose

a cognizable offence, justifying an investigation by police

officers under Section 156(1) of the Code except under an

order of a Magistrate within the purview of Section 155(2) of

the Code.

(3) Where the uncontroverted allegations made in the FIR or

complaint and the evidence collected in support of the same

do not disclose the commission of any offence and make out

a case against the accused.

(4) Where, the allegations in the FIR do not constitute a

cognizable offence but constitute only a non-cognizable

PART E

offence, no investigation is permitted by a police officer

without an order of a Magistrate as contemplated under

Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so

absurd and inherently improbable on the basis of which no

prudent person can ever reach a just conclusion that there is

sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of

the provisions of the Code or the concerned Act (under which

a criminal proceeding is instituted) to the institution and

continuance of the proceedings and/or where there is a

specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party.

(7) 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.”

36 In a more recent decision of a three Judge Bench of this Court in Neeharika

Infrastructure (supra), Justice M R Shah, speaking for the Bench consisting also of

one of us (Justice D Y Chandrachud), enunciated the following principles in relation

to the Court exercising its jurisdiction under Article 226 of the Constitution or Section

482 of the CrPC:

“80. In view of the above and for the reasons stated above,

our final conclusions on the principal/core issue, whether the

High Court would be justified in passing an interim order of

stay of investigation and/or “no coercive steps to be adopted”,

during the pendency of the quashing petition under Section

482 Cr.P.C and/or under Article 226 of the Constitution of

India and in what circumstances and whether the High Court

would be justified in passing the order of not to arrest the

accused or “no coercive steps to be adopted” during the

investigation or till the final report/chargesheet is filed under

Section 173 Cr.P.C., while dismissing/disposing of/not

entertaining/not quashing the criminal

proceedings/complaint/FIR in exercise of powers under

PART E

Section 482 Cr.P.C. and/or under Article 226 of the

Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant

provisions of the Code of Criminal Procedure contained in

Chapter XIV of the Code to investigate into a cognizable

offence;

ii) Courts would not thwart any investigation into the

cognizable offences;

iii) It is only in cases where no cognizable offence or

offence of any kind is disclosed in the first information

report that the Court will not permit an investigation to go

on;

iv) The power of quashing should be exercised sparingly

with circumspection, as it has been observed, in the

‘rarest of rare cases (not to be confused with the

formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which

is sought, the court cannot embark upon an enquiry as to

the reliability or genuineness or otherwise of the

allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial

stage;

vii) Quashing of a complaint/FIR should be an exception

rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the

jurisdiction of the police, since the two organs of the State

operate in two specific spheres of activities and one ought not

to tread over the other sphere;

ix) The functions of the judiciary and the police are

complementary, not overlapping;

x) Save in exceptional cases where non-interference would

result in miscarriage of justice, the Court and the judicial

process should not interfere at the stage of investigation of

offences;

xi) Extraordinary and inherent powers of the Court do not

confer an arbitrary jurisdiction on the Court to act according to

its whims or caprice;

PART E

xii) The first information report is not an encyclopedia

which must disclose all facts and details relating to the

offence reported. Therefore, when the investigation by

the police is in progress, the court should not go into the

merits of the allegations in the FIR. Police must be

permitted to complete the investigation. It would be

premature to pronounce the conclusion based on hazy

facts that the complaint/FIR does not deserve to be

investigated or that it amounts to abuse of process of

law. After investigation, if the investigating officer finds

that there is no substance in the application made by the

complainant, the investigating officer may file an

appropriate report/summary before the learned

Magistrate which may be considered by the learned

Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide,

but conferment of wide power requires the court to be

more cautious. It casts an onerous and more diligent

duty on the court;

xiv) However, at the same time, the court, if it thinks fit,

regard being had to the parameters of quashing and the

self-restraint imposed by law, more particularly the

parameters laid down by this Court in the cases of R.P.

Kapur (supra) and Bhajan Lal (supra), has the jurisdiction

to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the

alleged accused and the court when it exercises the

power under Section 482 Cr.P.C., only has to consider

whether the allegations in the FIR disclose commission

of a cognizable offence or not. The court is not required

to consider on merits whether or not the merits of the

allegations make out a cognizable offence and the court

has to permit the investigating agency/police to

investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or

the aforesaid aspects are required to be considered by

the High Court while passing an interim order in a

quashing petition in exercise of powers under Section

482 Cr.P.C. and/or under Article 226 of the Constitution of

India. However, an interim order of stay of investigation

during the pendency of the quashing petition can be passed

with circumspection. Such an interim order should not require

to be passed routinely, casually and/or mechanically.

PART E

Normally, when the investigation is in progress and the facts

are hazy and the entire evidence/material is not before the

High Court, the High Court should restrain itself from passing

the interim order of not to arrest or “no coercive steps to be

adopted” and the accused should be relegated to apply for

anticipatory bail under Section 438 Cr.P.C. before the

competent court. The High Court shall not and as such is not

justified in passing the order of not to arrest and/or “no

coercive steps” either during the investigation or till the

investigation is completed and/or till the final

report/chargesheet is filed under Section 173 Cr.P.C., while

dismissing/disposing of the quashing petition under Section

482 Cr.P.C. and/or under Article 226 of the Constitution of

India.

xvii) Even in a case where the High Court is prima facie of the

opinion that an exceptional case is made out for grant of

interim stay of further investigation, after considering the

broad parameters while exercising the powers under Section

482 Cr.P.C. and/or under Article 226 of the Constitution of

India referred to hereinabove, the High Court has to give brief

reasons why such an interim order is warranted and/or is

required to be passed so that it can demonstrate the

application of mind by the Court and the higher forum can

consider what was weighed with the High Court while passing

such an interim order.

xviii) Whenever an interim order is passed by the High Court

of “no coercive steps to be adopted” within the aforesaid

parameters, the High Court must clarify what does it mean by

“no coercive steps to be adopted” as the term “no coercive

steps to be adopted” can be said to be too vague and/or

broad which can be misunderstood and/or misapplied.”

(emphasis supplied)

37 We must now assess whether the Single Judge of the Telangana High Court

has, while quashing the FIR, decided within the parameters of the law described

above. The High Court has taken note of the following documents filed by the

respondents: (i) Income Tax Returns; (ii) disclosures by the first respondent to her

Department under the CCS Rules; (iii) an affidavit filed by the second respondent

PART E

under the RP Act and the Rules; (iv) a letter dated 14 March 2016 by the first

respondent to Principal Chief Commissioner of Income Tax (CCA), Chennai in

relation to the details of the construction of her house, and proof of it having been

taken on the record by an Office Memorandum dated 12 June 2017; and (v) a letter

dated 15 June 2016 from the Deputy Commissioner of Income Tax, Hyderabad

noting the intimation received from the first respondent in relation to the sale of her

property and value realized on 27 February 2016, and the intimation by the first

respondent in regard to the investment undertaken by her. After noting these

documents, the High Court has held:

“There is absolutely no dispute that the above documents are

true, in the sense they are filed with respective departments

and available in the public domain. In view of the law referred

above, the income assets and values of assets mentioned in

those documents have to be treated as 'known source of

income' for the purpose of Section 13 (1) (e) of the Prevention

of Corruption Act.”

There is a fundamental error on the part of the Single Judge in conflating a

document which is in the public realm with the truth of its contents.

38 Thereafter, the High Court has gone on to note that in the counter-affidavit

filed by the appellant before them, it has been admitted that the FIR has been

prepared only on the basis of “source information” and without verifying the Income

Tax Returns of the respondents. Hence, while highlighting the fault in the approach

of the appellant in not conducting a Preliminary Enquiry, the High Court then holds it

has to scrutinize the irregularities in the FIR. The Single Judge observed thus:

PART E

“The source information itself states that the petitioners are in

possession of disproportionate assets worth Rs.1,10,81,692/-.

This Court is unable to comprehend how the source

information would exactly reveal 'the amount of

disproportionate assets. Even if it is there, the respondents

ought to have confirmed it by calling explanation of the

petitioners by holding a Preliminary Enquiry which is not

done. This circumstance, as submitted by the learned Senior

Counsel for the petitioners, would emphasize that the F.I.R. is

registered in a hurry that too 'at Chennai, even without taking

pains', to conduct preliminary enquiry to ascertain the truth

and correctness of the figures of disproportionate assets

mentioned in the F.I.R., because, the counter affidavit speaks

that on the sole basis, of source information, directly F.I.R. is

registered. This Court is unable to accept the correctness of

the arguments advanced by the learned Standing Counsel for

the respondent that the correctness of such information will

be verified by giving 'opportunity' to the petitioners, during

course of investigation. That means, the respondents are

accepting their mistake in not conducting preliminary enquiry.

It is in the light of the above legal and factual issues, this

Court is inclined to dwell upon the scrutiny of the irregularities

pointed out by the petitioners in the statements A to D of the

F.I.R. to adjudicate upon the core issue whether the

respondents have prima facie material to conclude that the

petitioners are in possession of disproportionate assets.”

39 The High Court has then quashed the FIR by scrutinizing it in detail and

pointing out five major grounds. First, it has dealt with the argument that there is a

miscalculation of the respondents’ income in the FIR. It has held that while the FIR

notes the income of the respondents in the check period to be Rs 1,39,61,014, their

Income Tax Returns show it to be Rs 2,47,63,542. Hence, based on the

respondents’ Income Tax Returns alone, the High Court has directed that the

difference in income of Rs 1,08,02,528 be added to Statement-C in the FIR. Second,

it deals with the respondents’ issue with Serial No 9 of Statement-C of the FIR, that

PART E

while they sold a property for a sum of Rs 1 crore (in accordance with their Income

Tax Returns for FY 2015-16), their income is only mentioned as Rs 72,50,000. The

High Court has accepted this submission and rejected the appellant’s position that

the sum of Rs 72,50,000 was recorded based on their “source information”. As such,

it directed that a sum of Rs 25,00,000 be added to the respondents’ income under

Statement-C of the FIR. Third, it notes the respondents’ objection to Serial No 26 of

Statement-B of the FIR, where the same property has also been included as an

asset of the respondents worth Rs 8 lakhs at the end of the check period. It has

accepted the respondents’ submission and has directed that the amount of Rs 8

lakhs be struck off from Statement-B of the FIR. Fourth, it deals with the

respondents’ objection that their assets at Serial Nos 6 and 7 of Statement-B of the

FIR, which are the eastern and western portions of a house constructed by the first

respondent, has been overvalued by an amount of Rs 85,78,200 (the FIR mentions

its value to be Rs 5,15,50,000, while the respondents contend it to be Rs

4,14,21,800 based on a valuation report submitted by the first respondent and noted

in the letter dated 14 March 2016 by the first respondent to Principal Chief

Commissioner of Income Tax (CCA), Chennai). The High Court has then noted the

appellant’s response in their counter-affidavit that the value of the property in the

FIR was mentioned based on “source information”, and thereafter, they have

obtained a valuation by the Central Public Works Department60 which valued it at

Rs 6,48,85,300. This argument has then been summarily rejected by the High Court

by noting that the appellant could not have determined the correct value of the

60 “CPWD”

PART E

property without conducting a Preliminary Enquiry before registering the FIR. Finally,

in relation to this house, the respondents also objected to the value of the elevator in

the house being mentioned as 10 lakhs separately in Serial No 31 of Statement-B of

the FIR, when they believe it should have already been included within the valuation

of the house constructed by them. The High Court held that the appellant could not

properly explain why this was included separately and directed for it to be struck off

from Statement-B of the FIR, relying upon the letter dated 14 March 2016 by the first

respondent to Principal Chief Commissioner of Income Tax (CCA), Chennai in which

the valuation report of the house was included. Thereafter, the High Court provided

a summary of its conclusions in the form of the following table:

“

I. The following values have to be included in the income

of the petitioners shown in Statement-C.

1. Difference of Salary and arrears received

by the 1st petitioner

37,67,242

2. Difference of Income of 2nd petitioner 70,35,286

3. Difference of sale consideration received

by Sale of immovable property in

Bengaluru

27,50,000

Total amount of income to be added in

Statement-C

1,35,52,528

II. The following amounts have to be deducted from

Statement-B

1. Difference of value of the Building

Constructed by the 1st petitioner

85,78,200

2. Cost of Bengaluru property which was

already sold away by 2nd petitioner

8,00,000

3. Value of Oscan Elevator which is included

in the value of the construction of building

by the 1st petitioner

10,00,000

Total amount of income to be added in

Statement-B

1,03.78,200

a) Total Income as modified (Statement-C) 6,20,29,158

b) Total value of assets possessed at the

end of check period as modified

(Statement-B)

5,86,72,866

”

PART E

It then provided ‘revised’ figures (as compared to the FIR) in another table:

“

Sl.No. Particulars of Assets Amount

A Assets at the beginning of the check

period

1,35,26,066

B Assets at the end of the check period 5,86,72,866

C Assets during the check period (B-A) 4,51,46,800

D Income during the check period 6,20,29,158

E Expenditure during the check period 40,33,322

F Assets + Expenditure - Income (DA) -1,28,49,036

”

On the basis of this, the High Court concluded that no case of Disproportionate

Assets against the respondents was made out since their revised income exceeded

their expenditure and value of assets in the check period.

40 From the above, it becomes evident that the Single Judge of the Telangana

High Court has acted completely beyond the settled parameters which govern the

power to quash an FIR. The Single Judge has donned the role of a Chartered

Accountant. The Single Judge has completely ignored that the Court was not at the

stage of trial or considering an appeal against a verdict in a trial. The Single Judge

has enquired into the material adduced by the respondents, compared it with the

information provided by the CBI in the FIR and their counter-affidavit, and then

pronounced a verdict on the merits of each individual allegation raised by the

respondents largely relying upon the documents filed by them (by considering them

to be ‘known sources of income’ within the meaning of Section 13(1)(e) of the PC

Act). This exercised has been justified on account of the appellant not having

conducted a Preliminary Enquiry and hence, not having addressed the respondents’

PART E

objections relying upon the documents adduced by them. The reasons provided by

the Single Judge for entering into the merits of the dispute while quashing the FIR

are specious, especially so considering our finding that the CBI need not hold a

Preliminary Enquiry mandatorily. While exercising its jurisdiction under Article 226 of

the Constitution to adjudicate on a petition seeking the quashing of an FIR, the High

Court should have only considered whether the contents of the FIR – as they stand

and on their face – prima facie make out a cognizable offence. However, it is evident

that in a judgment spanning a hundred and seven pages (of the paper-book in this

appeal) the Single Judge has conducted a mini-trial, overlooking binding principles

which govern a plea for quashing an FIR.

41 The judgment of a two Judge Bench of this Court in Gunmala Sales (P) Ltd.

v. Anu Mehta61 makes it abundantly clear that the High Court does not conduct a

mini-trial or a roving inquiry while exercising its powers under Section 482 of the

CrPC. Justice Ranjana P Desai held:

“34.4. No restriction can be placed on the High Court's

powers under Section 482 of the Code. The High Court

always uses and must use this power sparingly and with great

circumspection to prevent inter alia the abuse of the process

of the court. There are no fixed formulae to be followed by the

High Court in this regard and the exercise of this power

depends upon the facts and circumstances of each case. The

High Court at that stage does not conduct a mini trial or

roving inquiry, but nothing prevents it from taking

unimpeachable evidence or totally acceptable circumstances

into account which may lead it to conclude that no trial is

necessary qua a particular Director.”

61 (2015) 1 SCC 103

PART E

This principle also applies squarely to the exercise of powers by a High Court under

Article 226 of the Constitution while considering a writ petition for quashing an FIR.

Further, in numerous judgments of this Court it has been held that a court cannot

conduct a mini-trial at the stage of framing of charges62. Hence, doing so at the

stage of considering a petition for quashing an FIR under Section 482 of the CrPC or

Article 226 of the Constitution is obviously also impermissible. Therefore, we

disapprove of the reasoning provided by the Telangana High Court in its impugned

judgment dated 11 February 2020 for quashing the FIR.

E.2 Whether the FIR is liable to be quashed in the present case

42 Now we must independently assess the FIR in order to adjudicate whether it

should be quashed. The FIR in the present case discloses an offence under Section

13(1)(e) which, prior to its amendment through the Amending Act 16 of 2018 with

effect from 26 July 2018, provided as follows:

“13. Criminal misconduct by a public servant.—(1) A public

servant is said to commit the offence of criminal

misconduct,—

[…]

(e) if he or any person on his behalf, is in possession or has,

at any time during the period of his office, been in possession

for which the public servant cannot satisfactorily account, of

pecuniary resources or property disproportionate to his known

sources of income.

62 State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, para 18; Bharat Parikh v. CBI, (2008) 10 SCC 109,

para 19; Indu Jain v. State of M.P., (2008) 15 SCC 341, para 39; Asian Resurfacing of Road Agency (P) Ltd. v.

CBI, (2018) 16 SCC 299, paras 33-34

PART E

Explanation.—For the purposes of this section, “known

sources of income” means income received from any lawful

source and such receipt has been intimated in accordance

with the provisions of any law, rules or orders for the time

being applicable to a public servant.”

43 The ambit of the provision has been explained by a two Judge Bench of this

Court in Kedari Lal (supra). Justice U U Lalit held thus:

“10. The expression “known sources of income” in

Section 13(1)(e) of the Act has two elements, first, the

income must be received from a lawful source and

secondly, the receipt of such income must have been

intimated in accordance with the provisions of law, rules

or orders for the time being applicable to the public

servant. In N. Ramakrishnaiah [N. Ramakrishnaiah v. State

of A.P., (2008) 17 SCC 83 : (2010) 4 SCC (Cri) 454] , while

dealing with the said expression, it was observed : (SCC pp.

86-87, para 17)

“17. ‘6. … Qua the public servant, whatever return he gets

from his service, will be the primary item of his income. [Other

income which can conceivably be] income qua the public

servant, will be in the regular receipt from (a) his property, or

(b) his investment.’ [Ed. : As observed in State of M.P. v.

Awadh Kishore Gupta, (2004) 1 SCC 691 at p. 697 : 2004

SCC (Cri) 353, para 6.] ”

The categories so enumerated are illustrative. Receipt by way

of share in the partition of ancestral property or bequest under

a will or advances from close relations would come within the

expression “known sources of income” provided the second

condition stands fulfilled that is to say, such receipts were

duly intimated to the authorities as prescribed.”

(emphasis supplied)

44 In the present case, the respondents have filed before us their Income Tax

Returns, statements under the CCS Rules, affidavits under the RP Act and all other

document filed before the Telangana High Court as well. Based on these

PART E

documents, the respondents have urged that the calculation of their income,

expenditure and value of assets during the check period in the FIR is incorrect. In

support of the proposition that these documents can be relied upon, they have

pointed out the following observations in the judgment in Kedari Lal (supra):

“12. In the instant case, every single amount received by

the appellant has been proved on record through the

testimony of the witnesses and is also supported by

contemporaneous documents and intimations to the

Government. It is not the case that the receipts so

projected were bogus or was part of a calculated device.

The fact that these amounts were actually received from

the sources so named is not in dispute. Furthermore,

these amounts are well reflected in the income tax

returns filed by the appellant.

13. In similar circumstances, the acquisitions being reflected

in income tax returns weighed with this Court in granting relief

to the public servant. In M. Krishna Reddy v. State [M.

Krishna Reddy v. State, (1992) 4 SCC 45 : 1992 SCC (Cri)

801] , it was observed in para 14 : (SCC p. 49)

“14. … Therefore, on the face of these unassailable

documents i.e. the wealth tax and income tax returns, we hold

that the appellant is entitled to have a deduction of Rs 56,240

from the disproportionate assets of Rs 2,37,842.”

[…]

15. If the amounts in question, which were duly intimated and

are reflected in the income tax return are thus deducted, the

alleged disproportionate assets stand reduced to Rs 37,605,

which is less than 10% of the income of the appellant. In

Krishnanand v. State of M.P. [(1977) 1 SCC 816 : 1977 SCC

(Cri) 190] and in M. Krishna Reddy [M. Krishna Reddy v.

State, (1992) 4 SCC 45 : 1992 SCC (Cri) 801] , this Court had

granted benefit to the public servants in similar

circumstances. We respectfully follow the said decisions.”

(emphasis supplied)

PART E

45 Further, the respondents have also pointed out five infirmities in the FIR, the

first four of which are based on the table reproduced in paragraph 10(ix)(b) of this

judgment which notes that the value of the respondents’ Disproportionate Assets

according to the FIR in the check period was Rs 1,10,81,692. First, it has been

pointed out that in Serial No 6 and 7 of Statement-B of the FIR, the value of the first

respondents’ constructed house is Rs 5,15,50,000, while its actual value (according

to the disclosures made by the respondents in their Income Tax Returns) is Rs

4,29,71,800. It has been argued that the value in the FIR is incorrect, by relying

upon letter dated 14 March 2016 submitted by the first respondent to Principal Chief

Commissioner of Income Tax (CCA), Chennai where she has notified them of the

construction of her house and attached a valuation report. According to this report,

the total value of the house was Rs 4,14,21,800. To this, an amount of Rs 15,50,000

has been added to reach a final value of Rs 4,29,71,800, which is Rs 85,78,200 less

than the value mentioned in the FIR. Further, while the appellant has defended the

valuation in the FIR, based on a valuation conducted by the CPWD in 2018 (which

valued the house at Rs 6,48,85,300), the respondents have argued that the CPWD

valuation has been done after the FIR had been filed and cannot be used to defend

the figures therein. Second, it has been argued that Serial No 31 of Statement-B of

the FIR records that the respondents have an asset worth Rs 10 lakhs, which is an

elevator inside the house mentioned in the assets. The argument against its

inclusion is two-fold: (i) the value of the elevator would have already been included

within the value of the house; and (ii) even the appellant’s rejoinder, at paragraph

16, admits this to be a mistake and notes that the elevator’s value is “subsumed in

PART E

the construction cost of the house property of the Respondent and hence this value

will be reduced”. Hence, on the basis of the first two submissions, the respondents

argue that the value of the Disproportionate Assets in the FIR will have to be

reduced by Rs 85,78,200 and Rs 10 lakhs, giving a new figure of Rs 25,03,492,

which is less than 10 per cent of their income during the check period. The third and

fourth infirmities have been argued collectively. The respondents have argued that

Serial No 26 of Statement-B of the FIR includes a property in Bangalore having a

value of Rs 8,00,000. However, Serial No 9 of Statement-C of the FIR adds Rs

72,50,000 to the respondents’ income as being derived from the sale of the same

Bangalore property. Hence, it is urged that there is an internal contradiction in the

FIR where the Bangalore property has been accounted for both as an asset of the

respondents while also accounting for the income through its sale. Further, in

relation to the income, it has been argued that the respondents’ Income Tax Returns

show that they received Rs 1 crore from the sale of the Bangalore property, but this

has been arbitrarily reduced by Rs 27,50,000. In its rejoinder, the appellant has

justified both of these by contesting the acquisition of the Bangalore property on the

ground that there was no valid title, and placing a serious doubt about the alleged

sale and the very character of the transaction. According to the respondents, the

value of the Disproportionate Assets in the FIR will stand reduced by Rs 8,00,000

and Rs 27,50,000, leading to an excess of respondents’ income of Rs 20,46,508

during the check period. Finally, it was also argued that the FIR has been filed solely

relying upon “source information”, which consists of documents seized by the CBI

during the investigation of another case, which is unrelated to the present one.

PART E

Further, the respondents have also produced an order dated 28 February 2019 of

the Principal Special Judge for CBI Cases (VIIIth Additional City Civil Court,

Chennai) where this other case has been closed upon the submission of a closure

report under Section 173 of the CrPC where it is noted that the FIR was closed due

to “mistake of fact”.

46 On the other hand, it has been argued on behalf of the appellant that the

documents relied upon by the respondents are not unimpeachable and have to be

proved at the stage of trial. Hence, it was urged that the arguments made on the

basis of these documents should not be accepted by this Court. The appellant has

relied upon the judgment of a two Judge Bench of this Court in J. Jayalalitha

(supra), where it has been held that documents such as Income Tax Returns cannot

be relied upon as conclusive proof to show that the income is from a lawful source

under the PC Act. Justice P C Ghose held thus:

“191. Though considerable exchanges had been made in

course of the arguments, centering around Section 43 of the

Evidence Act, 1872, we are of the comprehension that those

need not be expatiated in details. Suffice it to state that

even assuming that the income tax returns, the

proceedings in connection therewith and the decisions

rendered therein are relevant and admissible in evidence

as well, nothing as such, turns thereon definitively as

those do not furnish any guarantee or authentication of

the lawfulness of the source(s) of income, the pith of the

charge levelled against the respondents. It is the plea of

the defence that the income tax returns and orders, while

proved by the accused persons had not been objected to by

the prosecution and further it (prosecution) as well had called

in evidence the income tax returns/orders and thus, it cannot

object to the admissibility of the records produced by the

defence. To reiterate, even if such returns and orders are

admissible, the probative value would depend on the

PART E

nature of the information furnished, the findings

recorded in the orders and having a bearing on the

charge levelled. In any view of the matter, however, such

returns and orders would not ipso facto either

conclusively prove or disprove the charge and can at

best be pieces of evidence which have to be evaluated

along with the other materials on record. Noticeably, none

of the respondents has been examined on oath in the case in

hand. Further, the income tax returns relied upon by the

defence as well as the orders passed in the proceedings

pertaining thereto have been filed/passed after the chargesheet had been submitted. Significantly, there is a charge of

conspiracy and abetment against the accused persons. In the

overall perspective therefore neither the income tax

returns nor the orders passed in the proceedings

relatable thereto, either definitively attest the lawfulness

of the sources of income of the accused persons or are

of any avail to them to satisfactorily account the

disproportionateness of their pecuniary resources and

properties as mandated by Section 13(1)(e) of the Act.

[…]

200. In Vishwanath Chaturvedi (3) v. Union of India

[Vishwanath Chaturvedi (3) v. Union of India, (2007) 4 SCC

380 : (2007) 2 SCC (Cri) 302] , a writ petition was filed under

Article 32 of the Constitution of India seeking an appropriate

writ for directing the Union of India to take appropriate action

to prosecute R-2 to R-5 under the 1988 Act for having

amassed assets disproportionate to the known sources of

income by misusing their power and authority. The

respondents were the then sitting Chief Minister of U.P. and

his relatives. Having noticed that the basic issue was with

regard to alleged investments and sources of such

investments, Respondents 2 to 5 were ordered by this Court

to file copies of income tax and wealth tax returns of the

relevant assessment years which was done. It was pointed

out on behalf of the petitioner that the net assets of the family

though were Rs 9,22,72,000, as per the calculation made by

the official valuer, the then value of the net assets came to be

Rs 24 crores. It was pleaded on behalf of the respondents

that income tax returns had already been filed and the

matters were pending before the authorities concerned and

all the payments were made by cheques, and thus the

allegation levelled against them were baseless. It was

observed that the minuteness of the details furnished by

the parties and the income tax returns and assessment

PART E

orders, sale deeds, etc. were necessary to be carefully

looked into and analyzed only by an independent agency

with the assistance of chartered accountants and other

accredited engineers and valuers of the property. It was

observed that the Income Tax Department was

concerned only with the source of income and whether

the tax was paid or not and, therefore, only an

independent agency or CBI could, on court direction,

determine the question of disproportionate assets. CBI

was thus directed to conduct a preliminary enquiry into the

assets of all the respondents and to take further action in the

matter after scrutinizing as to whether a case was made out

or not.

201. This decision is to emphasize that submission of

income tax returns and the assessments orders passed

thereon, would not constitute a foolproof defence against

a charge of acquisition of assets disproportionate to the

known lawful sources of income as contemplated under

the PC Act and that further scrutiny/analysis thereof is

imperative to determine as to whether the offence as

contemplated by the PC Act is made out or not.”

(emphasis supplied)

47 In relation to the arguments on the alleged infirmities of the FIR, the

contentions of the respondents have been refuted by the appellants by urging that:

(i) the first submission of the respondents is based entirely upon the letter dated 14

March 2016 submitted by the first respondent to Principal Chief Commissioner of

Income Tax (CCA), Chennai, which includes a valuation report. The value set out in

in this report cannot be relied upon at this stage, especially when the CPWD Report

values the house to have a much higher value; (ii) in relation to the third and fourth

submissions, it is argued that the inclusion of the Bangalore property as an asset

while including the money from its sale as income is fair since the very sale in itself

is being disputed by the appellant. Hence, the veracity of the documents of sale is

PART E

something that can only be determined at the stage of trial; and (iii) in relation to the

final submission, it was argued that the documents which gave rise to the “source

information” were seized during another case being investigated by the appellant

where the first respondent was one of eight officers of the Income Tax department

accused of taking benefits (such as hotel stays) from Chartered Accountants. These

documents were seized during four raids conducted at the residences of the first

respondent, and she herself was also examined in that case. It has been submitted

that the documents which gave rise to the “source information” were seized during

the raids conducted at the first respondent’s residences in Secunderabad on 27

June 2016 and in Jubilee Hills, Hyderabad on 8 July 2016. Hence, the fact that the

other case during whose investigation these documents were seized has now been

closed does not affect the FIR in the present case, since the charges against the

first respondent are entirely different.

48 At the very outset, we must categorically hold that the documents which have

been relied upon by the respondents cannot form the basis of quashing the FIR. The

value and weight to be ascribed to the documents is a matter of trial. Both the

parties have cited previous decisions of two Judge Benches of this Court in order to

support their submissions. There is no clash between the decisions in Kedari Lal

(supra) and J. Jayalalitha (supra) for two reasons: (i) the judgment in J. Jayalalitha

(supra) notes that a document like the Income Tax Return, by itself, would not be

definitive evidence in providing if the “source” of one’s income was lawful since the

Income Tax Department is not responsible for investigating that, while the facts in

PART E

the judgment in Kedari Lal (supra) were such that the “source” of the income was

not in question at all and hence, the Income Tax Returns were relied upon

conclusively; and (ii) in any case, the decision in Kedari Lal (supra) was delivered

while considering a criminal appeal challenging a conviction under the PC Act, while

the present matter is at the stage of quashing of an FIR.

49 In the present case, the appellant is challenging the very “source” of the

respondents’ income and the questioning the assets acquired by them based on

such income. Hence, at the stage of quashing of an FIR where the Court only has to

ascertain whether the FIR prima facie makes out the commission of a cognizable

offence, reliance on the documents produced by the respondents to quash the FIR

would be contrary to fundamental principles of law. The High Court has gone far

beyond the ambit of its jurisdiction by virtually conducting a trial in an effort to

absolve the respondents. During the course of her submissions, Ms Bhati, learned

ASG has stated on the instructions of the Investigating Officer, that during the

course of the investigation about 140 witnesses have been examined and over 500

documents have been obtained. The investigation is stated to be at an advanced

stage and is likely to conclude within a period of two to three months. At the same

time, the Court has been assured by the ASG on the instructions of the Investigating

Officer that before concluding the investigation, the first and second respondents will

be called in order to enable them to tender their explanation in respect of the heads

of Disproportionate Assets referred to in the FIR.

PART F

50 In relation to the other arguments raised by the respondents to point out

infirmities in the FIR, adjudicating those at this stage will trench upon evidentiary

proof at the trial. That is the mistake that the Telangana High Court committed,

which this Court would be remiss to repeat. The only infirmity pointed out by the

respondents which has been acceded to by the appellant is in relation to the addition

of the value of the elevator separately when the whole house had already been

valued. However, by itself, it only being a value of Rs 10 lakhs, this will not be

enough to take away the whole basis of the Disproportionate Assets case against

the respondents. Hence, at this stage, we cannot quash the FIR against the

respondents and hold that the appellant’s investigation pursuant to it shall continue.

F Conclusion

51 Before parting, we also note that extensive arguments had been raised before

us by the respondents in relation to whether the appellant could even register the

case against the respondents, since the State of Andhra Pradesh has withdrawn the

general consent given to the appellant under Section 6 of the DSPE Act through an

order dated 8 November 2018. This has been countered by the appellant by noting:

(i) that the FIR has been registered in Chennai, and that the general consent by the

State of Tamil Nadu under Section 6 of the DSPE Act still stands; (ii) that the first

respondent is an employee of the Central Government; and (iii) that the second

respondent is alleged to be an abettor under Section 109 of the IPC. Similarly,

arguments have also been raised by both sides in relation to the jurisdiction of the

PART F

Telangana High Court and whether the FIR could have been registered against the

second respondent without the consent of the Speaker (since he is a sitting MLA).

However, at this stage, we do not think it is necessary for us to adjudicate them and

we are leaving these issues open without commenting upon their merits.

52 Therefore, in conclusion, we set aside the impugned judgment dated 11

February 2020 of the Single Judge of the Telangana High Court quashing the FIR

and any proceedings pursuant to it. The appellant can continue with its investigation

based upon the FIR.

53 The appeal is allowed and the impugned judgment of the Single Judge of the

High Court for the State of Telangana is set aside.

54 Pending applications, if any, also stand disposed of.

……….….....................................................J.

[Dr Dhananjaya Y Chandrachud]

.…..….….....................................................J.

[Vikram Nath]

.…..….….....................................................J.

[B V Nagarathna]

New Delhi;

October 08, 2021

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