2024 (6) TMI 35 - HC - Indian Laws

Police can file FIR for corruption without preliminary enquiry when cognizable offence disclosed

The Gauhati HC dismissed a petition seeking quashing of complaints under sections 120B IPC and sections 7, 7A of the Prevention of Corruption Act, 1988. ... Seeking Quashing of Complaints registered under sections 120B IPC read with section 7 and 7 (A) of the Prevention of Corruption Act, 1988 - Barred by Limitation u/s 468(2) CrPC - Preliminary Enquiry Requirement - Delayed Prosecution Sanction - Allegations of Mala Fides and Ulterior Motive - Violation of Law Relating to FIR, Arrest, Personal Search, and Trap Proceeding - Requirement of Preliminary Enquiry:- HELD THAT:- It appears that preliminary enquiry is no longer mandatory when the FIR or complaint discloses commission of a cognizable offence and as such this court is unable to agree with the submission of Ms. Bordoloi, learned counsel for the petitioner. On the other hand, I find substance in the submission of Mr. Haloi, the learned counsel for the respondent No. 2 and the case law referred by him also strengthen his submissions. Therefore, this court is inclined to record concurrence with the submissions of Mr. Haloi. Delayed prosecution sanction:- The record reveals that after completion of investigation the investigating officer had submitted charge sheet on 25.01.2023, under section 7 & 7A of Prevention of Corruption Act 1988 read with section 120 (B) IPC against the present petitioner along with Shri Avinash (A-3), Shri Mahabir Jain Shyamsukha (A-4) and supplementary charge sheet on 17.02.2023, against accused Shri Rajendra @ Amol D. Medhekar (A-2), to stand trial under section 120-B/419 IPC and under section 7 & 7 A of Prevention of Corruption Act 1988 and u/s 66B of Information Technology Act, 2000. But, the prosecution sanction, as it appears from the Annexure -’A’ of the additional affidavit of the respondent No. 1, dated 10.11.2023, to prosecute the petitioner was granted by the President on 17.08.2023, vide Sanction Order No. 05/2023. Thus, there appears to be substance in the submission of Ms. Bordoloi, the learned counsel for the petitioner. But, what remains to be seen is what would be the consequence of violation of above timelines and can it be a ground for quashing the proceeding. Be it noted here that the learned counsel for the petitioner has canvassed this issue of violation of timeline as one of the grounds for quashing the petition. This court is of the considered opinion that there is no merit in the submission of Ms. Bordoloi, the learned counsel for the petitioner. Accordingly, the same stands repudiated. Mala fides, ulterior motive on the part of the informant to falsely implicate the petitioner:- Same principle is echoed in the case of M/s Zandu Pharmaceutical Works Ltd. vs. Md. Sharaful Haque & Anr. [2004 (11) TMI 519 - SUPREME COURT] also wherein Hon’ble Supreme Court has held that when an information is lodged at the police station and an offence is registered, then the mala-fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. Notably, in the mentioned case, Hon’ble Supreme Court has also taken into consideration its earlier decision in Bhajanlal (supra). Violation of law relating to FIR, including delay, arrest, personal search, trap proceeding:- Though the learned counsel for the petitioner has submitted that the respondent CBI had violated the relevant provision of law relating to filing of FIR, arrest, personnel search, pre-trap and post trap proceeding and also pointed out about delay in lodging the FIR, yet, this court is of the considered view that these issues can be looked into at the trial not at this stage, as held in the case of Aryan Singh [2023 (4) TMI 1330 - SUPREME COURT] where it has been held that in an application for quashing of the criminal proceedings, while exercising the powers u/s 482 Cr. P.C., the Court is not required to conduct the mini trial. This court is unable to derive its satisfaction that very exceptional circumstances or ‘rarest of rare case’ is found to be made out by the petitioner so as to invoke the extra ordinary jurisdiction of this court, u/s 482 Cr.P.C., as held in the case of Bhajan Lal (supra) [1990 (11) TMI 386 - SUPREME COURT] and in M/s Neeharika Infrastructure Pvt. Ltd. [2021 (4) TMI 1244 - SUPREME COURT] In the result, I find no merit in this petition and accordingly, the same stands dismissed. The parties have to bear their own costs. Stay, if any, granted earlier, stands vacated. Issues Involved:1. Quashing of FIR and consequential proceedings.2. Allegation of evasion of service tax by the complainant.3. Allegation of mala-fide intention and personal grudge by the complainant.4. Alleged procedural violations by the respondent CBI.5. Petitioner's unblemished service record.6. Absence of foundational facts for the charges.7. Petitioner's personal liberty and dignity.8. Exercise of inherent power by the court u/s 482 Cr.P.C.Summary:1. Quashing of FIR and Consequential Proceedings:The petitioner sought to quash FIR No. RC0172022A0007, dated 28.09.2022, registered u/s 120B IPC read with sections 7 and 7(A) of the Prevention of Corruption Act, 1988, citing the complaint was lodged out of personal grudge and vengeance. The court, however, found that the FIR and subsequent charge sheet disclosed sufficient incriminating material against the petitioner, thus, quashing was not warranted.2. Allegation of Evasion of Service Tax by the Complainant:The petitioner claimed the complainant had evaded service tax amounting to Rs. 77,88,683/ and faced a demand notice. The court noted that this defense plea should be considered during the trial, not at the stage of quashing proceedings.3. Allegation of Mala-fide Intention and Personal Grudge by the Complainant:The petitioner alleged the complainant had a personal grudge and falsely implicated him. The court held that such allegations of mala-fide intention are secondary and should be tested during the trial, not at the stage of quashing the FIR.4. Alleged Procedural Violations by the Respondent CBI:The petitioner argued that there were procedural violations in filing the FIR, arrest, and pre-trap and post-trap proceedings. The court stated that these issues should be examined during the trial, not at the quashing stage.5. Petitioner's Unblemished Service Record:The petitioner highlighted his unblemished service record of 23 years. The court acknowledged this but emphasized that the allegations and evidence collected during the investigation warranted a trial.6. Absence of Foundational Facts for the Charges:The petitioner contended that the FIR lacked foundational facts to constitute the offences charged. The court found that the FIR and investigation disclosed sufficient material to establish a prima facie case against the petitioner.7. Petitioner's Personal Liberty and Dignity:The petitioner argued that his personal liberty and dignity, protected under Article 21 of the Constitution, were at stake. The court held that the allegations and evidence necessitated a trial, and the petitioner's personal liberty and dignity could be safeguarded during the judicial process.8. Exercise of Inherent Power by the Court u/s 482 Cr.P.C.:The court reiterated the principles for exercising inherent power u/s 482 Cr.P.C., emphasizing that such power should be used sparingly and only in rarest of rare cases. The court concluded that the present case did not meet the criteria for exercising this power and dismissed the petition.