TaxTMI 
TaxTMI 
2023 (4) TMI 978
X X X X Extracts X X X X
X X X X Extracts X X X X
....ereby 3 (three) writ petitions [WPCR 88 of 2020, WPCR 154 of 2020 and WPCR 206 of 2020] were disposed of. WPCR 88 of 2020, presented by Sri Aman Singh (hereafter 'AS', for short), was allowed by quashing FIR No. 9/2020 dated 25th February, 2020 (hereafter 'the FIR", for short) Under Section 13(1)(b) and (2), Prevention of Corruption Act, 1988 (hereafter 'P.C. Act", for short) read with Section 120B, Indian Penal Code (hereafter 'IPC", for short), registered by the Economic Offences Wing/Anti-Corruption Bureau of the State. WPCR 154 of 2020, instituted by the wife of AS, Smt. Yasmin Singh (hereafter 'YS', for short), was partly allowed. The spouses were the joint Petitioners in WPCR 206 of 2020, which was also allowed. 3. A complaint dated 11th October, 2019 was lodged by US in the office of the Chief Minister of the State. It was alleged therein that AS [an Indian Revenue Service (IRS) officer and the former Principal Secretary to the erstwhile Chief Minister of Chhattisgarh], his wife YS, [former consultant to the Govt. of Chhattisgarh, who had worked on contract as the Director, Communication and Capacity Development Unit (CCDU), Department of Public ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on [WPCR 88/2020] before the High Court on 29th January, 2020. In such writ petition, AS urged the court to pass an order for production of the entire records pertaining to the letter dated 21st October, 2019 for its perusal, for quashing the said letter as well as any consequential step/action taken by the State including P.E. No. 35/2019. 8. During the pendency of WPCR 88/2020, the FIR was registered against AS and YS. 9. Within a few days of registration of the FIR, on 28th February, 2020 to be precise, AS applied for an amendment of WPCR 88/2020 seeking to mount a challenge to the FIR. He had also applied for interim relief for stay of effect/operation of the FIR. 10. YS too, on 2nd March, 2020, instituted WPCR 154/2020 seeking an order, inter alia, for quashing of the FIR. 11. By an order dated 28th February, 2020, the High Court allowed the application for amendment and also directed that no coercive steps be taken against AS till the next date of hearing. 12. On 15th April, 2020, WPCR 206/2020 was jointly instituted by AS and YS seeking appropriate order for listing of WPCR 88/2020 and WPCR 154/2020 for final hearing immediately upon resumption of normal functioning of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e material portions of the FIR after noting the rival contentions. 16. Mr. Sibal, learned Senior Counsel appearing in support of the appeals preferred by the State, contended that the High Court committed gross error of law in quashing the FIR by transgressing the legal bounds for quashing a first information report. Placing reliance on the decision of this Court in CBI and Ors. v. Tapan Kumar Singh (2003) 6 SCC 175, he contended that a first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported; what is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide the basis for the police to suspect the commission of a cognizable offence. At the stage of registration of a first information report, the police officer on the basis of the information given has to suspect the commission of a cognizable offence and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect on the basis of the information received that a cognizable offence may have been committed, he is bound to record t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ver, it would be premature to pronounce any conclusion that the first information report does not disclose any cognizable offence based on hazy facts. 20. Mr. Sibal, thus, prayed that the impugned judgment and order of the High Court be set aside and investigation into the FIR be permitted to be taken to its logical conclusion. 21. Mr. Sanjay Hegde, learned Senior Counsel for the other Appellant, i.e., US, contended that the High Court clearly applied a wrong test while quashing the FIR. According to him, the test of a prima-facie or probable case is only required to be shown at the time of framing of charge; however, for an investigation to proceed on the basis of a first information report, all that is required to be shown is that the contents of the complaint/first information report, when taken at face value, make out an offence. 22. It was further contended by Mr. Hegde that the High Court conducted a mini-trial while arriving at a conclusion that no offence against AS and YS has been made out in the FIR which, this Court has repeatedly held, cannot be conducted in proceedings for quashing of a first information report. At the stage of considering a prayer for quashing of f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or Counsel appearing for AS and YS, opposed the appeals. Reiterating the contentions that found favour with the High Court, he contended that the High Court rightly concluded that investigation of the FIR, which did not prima facie disclose commission of any cognizable offence by either AS or YS, would be nothing but an abuse of the process of law and compelling AS and YS to join the investigation would amount to undue and unnecessary harassment. 29. By referring to the facts preceding registration of the FIR, Mr. Jethmalani sought to impress us that ever since the political dispensation underwent a change in the State of Chhattisgarh, AS and YS have been the target of the new dispensation. Misusing the police machinery, no stone has been left unturned to falsely implicate AS and YS. Initially a departmental inquiry was initiated against YS vide an order dated 10th May, 2019 and no sooner had the High Court by an order dated 21st October, 2019 granted interim protection to YS, further action was taken to initiate a preliminary inquiry against AS and YS on 11th November, 2009. That apart, quite mischievously, the FIR was suddenly registered during the pendency of WPCR 88/2020 to re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, or for that matter, the FIR, and the High Court was right in its interference to prevent abuse of the process of law. 36. The contention of the Respondents that the High Court had applied a 'non-existent legal test' was refuted by terming it as entirely misleading. Passages from the impugned judgment were referred to, to show how the High Court was right in returning the finding that the FIR did not disclose any offence rendering it liable to interdiction. 37. While concluding, Mr. Jethmalani contended that there was no material to justify registration of the FIR and that there being no 'legitimate prosecution', the same has rightly been quashed and set aside by the impugned judgment; hence, the appeals are liable to be dismissed. 38. The High Court did not in the impugned judgment assign mala fide as a ground for quashing the FIR. In course of hearing before us, Mr. Jethmalani attempted to build up a case of mala fide by referring to how the incumbent Chief Minister perceived AS to be a 'super CM' and also that AS has become the victim of political vendetta, being caught in the crossfire between the incumbent Chief Minister and the former Chief Minist....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the process of being filed by AS and YS and that the same ought to be considered before the judgment on these appeals is pronounced. Orally, we permitted the application to be filed for being taken into consideration at an appropriate time. 44. The application, which has since been filed on 20th January, 2023, refers to certain newspaper reports and WhatsApp messages/chats exchanged allegedly between important functionaries of the Government of Chhattisgarh and based thereon it has been the contention that there exists conclusive material in public domain establishing that the FIR against AS and YS has been registered at the behest of one Sri Anil Tuteja and other high-ranking public officials in the State, at the instance of the present Chief Minister. Since the materials brought on record by such application are sufficient to drive home the conclusion that political vendetta is the real cause for registration of the FIR, to tarnish the reputation of AS and YS, it has been urged that all the evidence ought to be summoned by this Court for just disposal of the present proceedings. Such application contains the following prayers: PRAYER In the facts and circumstances stated h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her states that there is possibility of having various properties in the name of the Petitioner and his wife. The FIR further states that there is reasonable possibility that the Petitioner has invested himself for his wife and other dependent family members and it was also stated that there is a possibility that a huge amount of money is being deposited in the bank account of his wife. The FIR nowhere discloses commission of any offence with definite facts and figures. The FIR is based upon probabilities. As per the Act, 1988, it is for the prosecution to establish prima facie offence Under Section 13(1)(b) read with Section 13(2) of the Act, 1988 against Government servant by reflecting in the FIR, which is initiation of prosecution, then only, prosecution can be started to investigate the offence as mentioned in the FIR. In absence of any specific allegation made in the FIR, merely on probability, the Petitioner cannot be prosecuted. The FIR has been registered on the basis of complaint made by one Uchit Sharma. The allegation in the FIR that the Petitioner has not filed a single APR while being employed with the Government of Chhattisgarh due to fear that his disproportionate a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te is required to trace the root of corruption. 'Greed', regarded in Hinduism as one of the seven sins, has been overpowering in its impact. In fact, unsatiated greed for wealth has facilitated corruption to develop like cancer. If the corrupt succeed in duping the law enforcers, their success erodes even the fear of getting caught. They tend to bask under a hubris that Rules and Regulations are for humbler mortals and not them. To get caught, for them, is a sin. Little wonder, outbreak of scams is commonly noticed. What is more distressing is the investigations/inquiries that follow. More often than not, these are botched and assume the proportion of bigger scams than the scams themselves. However, should this state of affairs be allowed to continue? Tracking down corrupt public servants and punishing them appropriately is the mandate of the P.C. Act. "We the people", with the adoption of our Constitution, had expected very high standards from people occupying positions of trust and responsibility in line with the Constitutional ethos and values. Regrettably, that has not been possible because, inter alia, a small Section of individuals inducted in public service for '....
X X X X Extracts X X X X
X X X X Extracts X X X X
....other explanation defines "known sources of income" to mean income received from any lawful sources. To attract this provision, the officer sought to be proceeded against must be a public servant. He must be found to be in possession of, by himself, or through any person on his behalf, at any time during the period of his office, pecuniary resources or property disproportionate to his known sources of income. If he is unable to satisfactorily account for the same, he shall be liable to be proceeded against for having committed criminal misconduct and suitably punished and fined if the charge is proved for such period, as provided in Sub-section (2). Undoubtedly, this is a presumptive finding but that finding is based on three facts, viz. being a (i) public servant, (ii) if at any time during the period of his office, he has been in possession, by himself or through any person on his behalf, of pecuniary resources or property disproportionate to his known sources of income, then (iii) he is enjoined to satisfactorily account for the same. The offence of criminal misconduct is committed by a public servant if (ii) is proved and (iii) does not happen. Therefore, if a prosecution is la....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cenario, it is indeed a difficult task for the Government - the employer - because of its impersonal character and the usual lethargy or indolence at Government levels to connect the officer with the resources or assets illicitly acquired. To weed out corrupt public servants, the Government has to engage sincere and dedicated personnel for collecting and collating the necessary material in this regard. If there be no interventions, the investigation that is likely to follow in terms of the Code of Criminal Procedure, could enable the investigating officer to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources in dispute. Since snapping of any link in the chain of circumstances could prove fatal to the whole exercise, it is of utmost necessity that care and dexterity are not compromised. 53. It is in the light of Section 13 of the P.C. Act and the above principles that we need to read the FIR and the preceding complaint to assess whether any cognizable offence is made out against AS and, a fortiori, against YS, his wife. 54. The complaint that US lodged with the Chief Minister does specifically....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to involvement of AS as promoter of a 'memorial foundation' and YS as partner of a firm, reveals the following contents: ***As per the information regarding properties exceeding income, received in the inquiry, commission of a cognizable offence appears prima facie. Keeping it in view, investigation is required so that information may be obtained regarding movable and immovable properties in addition to the aforesaid properties. There is possibility that information regarding not only shares, vehicles and jewelry but also regarding Benami properties in the name of relatives, may be obtained. The income received lawfully by non-applicant Aman Singh and Yasmin Singh during their tenure as public servant, from year 2014 to December, 2018, was found to be Rs. 3,33,71,290, in comparison to which, it was found that immensely disproportionate expenses have been made by non-applicant Aman Singh during the said period in his name and in the name of his wife and dependent members, which was prima facie found to be an offence Under Sections 13(1)B, 13(2) of the Prevention of Corruption Act, 1988 as amended by Amendment Act, 2018 and Section 120(B) of the Indian Penal Code. 56. It ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 59. It seems that such note of caution did not have the desired effect in all cases resulting in this Court, in its subsequent decisions, reemphasizing the need for the high courts to bear in mind the settled principle of law that whenever its powers are invoked either Under Article 226 of the Constitution or Section 482, Code of Criminal Procedure for quashing a first information report/complaint, the courts would not be justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein (emphasis ours). We may, in this regard, profitably refer to the decision of this Court while dealing with a case under the P.C. Act in State of Maharashtra v. Ishwar Piraji Kalpatri (1996) 1 SCC 542. 60. Very strong reliance has been placed by Mr. Sibal on the decision in Tapan Kumar Singh (supra). There, this Court ruled that: 20. *** The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take act....
X X X X Extracts X X X X
X X X X Extracts X X X X
....approach being clearly impermissible at the stage of considering a challenge to a first information report, we are of the considered opinion that the judgment and order under challenge is indefensible. 64. We now move on to consider Circular No. 29/2020 dated 12th November, 2020 issued by the CBI on the subject of investigation of cases of Illicit Enrichment (possession of pecuniary resources or property disproportionate to known sources of income) (hereafter 'CBI Circular', for short). Having perused the CBI Circular, what we find is that the same provides the methodology to guide registration of a first information report in relation to disproportionate assets cases. To the written notes of arguments is annexed a circular dated 12th April, 2021, by which the State has clarified that the CBI's methodology would apply to the State's ACB/EOW as well (because the manual of the State's ACB/EOW has not been notified) and also that the CBI's methodology will apply in respect of All India and Central Govt. Service Officers. However, the contention on behalf of AS and YS that the methodology provided in the CBI Circular has been observed in the breach has failed t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vanced arguments more touching upon the mala fides that worked in registration of the FIR against AS and YS. As has been noted above, reacting to Mr. Hegde's submission that there are no pleadings of mala fides, he submitted that the writ petitions are replete with such pleadings. 69. As if the submissions of Mr. Jethmalani were not strong enough, we had AS and YS filing the application for directions late in the day seeking to bring on record certain reports/messages/chats to provide proof that mala fide motive is indeed the genesis of the FIR. We have also perused the application for directions, and more particularly the contents of paragraph 13 thereof. 70. For reasons more than one, we are inclined to the view that the writ petitions before the High Court would not have succeeded even if the plea of mala fide were advanced and accepted as a ground of assail to the FIR, based on what has been laid down in Bhajan Lal (supra). 71. We have perused the writ petitions filed by AS and YS and have no hesitation to agree with Mr. Hegde that the pleadings are insufficient to return a finding that the FIR is an outcome of mala fide. No doubt, certain allegations are levelled agains....
X X X X Extracts X X X X
X X X X Extracts X X X X
....indeed, in such a case (where a prosecution should have been but has not been launched) the succeeding political dispensation initiates steps for launching prosecution against such an Accused but he/she is allowed to go scot-free, despite there being materials against him/her, merely on the ground that the action initiated by the current regime is mala fide in the sense that it is either to settle scores with the earlier regime or to wreak vengeance against the individual, in such an eventuality we are constrained to observe that it is criminal justice that would be the casualty. This is because, it is difficult to form an opinion conclusively at the stage of reading a first information report that the public servant is either in or not in possession of property disproportionate to the known sources of his/her income. It would all depend on what is ultimately unearthed after the investigation is complete. Needless to observe, the first information report in a disproportionate assets case must, as of necessity, prima facie, contain ingredients for the perception that there is fair enough reason to suspect commission of a cognizable offence relating to "criminal misconduct" punishabl....