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SUPREME COURT OF INDIA
MK. Mukherjee and R.N. Kirpal, JJ.
State of Maharashtra - Appellant
versus
Ishwar Piraji Kalpatri - Respondent
Criminal Appeal No. 331 of 1993
With
Criminal Appeal No. 332 of 1993
Both decided on 30-11-1995
Held, that at the stage of quashing an First Information Report or complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. This is precisely what has- been done by the learned Judge in the present case. The First Information Report having been lodged, the Government of Maharashtra having accorded sanction and thereafter, the charge having been filed, there was absolutely no justification for the High Court to have stopped the normal procedure of the trial being allowed to continue. It "cannot be presumed that there was no application of mind when the First Information Report was prepared and the sanction of the Government obtained. The allegations as made in the First Information Report and the order granting sanction, if true, would clearly establish that the respondent was rightly prosecuted and was guilty of criminal mis-conduct. The truthfulness of the allegations and the establishment of the guilt can only take place when the trial proceeds without any interruption. There was no justification for the High Court to have exercised its jurisdiction under Article 227 of the Constitution and Section 482 of the Cr.P.C. in quashing the prosecution. (Para 20)
(ii) Prevention of Corruption Act, 1988 Prosecution for offence under - Order according sanction - No legal requirement that a statement to be made that while according sanction the officer signing the order had personally scrutinised the file and had arrived at required satisfaction - Material on record having been examined by concerned officers before according sanction - No legal infirmity Sanction order is valid.
Held, that the order of the sanction was not valid the High Court first held that "in the absence of sanctioning authority recording and holding that the accused could not satisfactorily account for disproportionate assets, no sanction could ever have been granted". Without going into the question as to whether in the order according sanction it is necessary for such an averment being made, the record clearly discloses that in the schedule annexed to the sanction dated 3-2-1990, such a statement was made. After stating that the respondent and his family and/or associates were found to be in possession of pecuniary resources or properties disproportionate to the extent of Rs. 5,66,604.01/-, it was specifically stated that with regard to this "the accused person failed to satisfactorily account for". It is clear that the learned Judge had wrongly observed that such a statement was absent. (Para 10)
Further Held: We do not find any warrant, in law, which requires a statement being made, while according sanction that the officer signing the order had personally scrutinised the file and had arrived at the required satisfaction. In the preamble of the said order, it is categorically stated "and whereas the Government of Maharashtra having fully examined the material before it and considering all the facts and circumstances disclosed herein, is satisfied that there is a prima facie case made out against the accused person and that it is necessary in the interest of justice that the accused person should be prosecuted in the court of competent jurisdiction for the said offence". (Para 11)
Consequently Held: This prima facie shows that there has been an application of mind and that the material on record has been examined by the concerned officers before according sanction. In view of the aforesaid, there was absolutely no justification for the learned Judge to observe that any such statement as indicated by him, was required to be made in the order. The learned Single Judge made observations to the effect that the manner in which the sanction order had been passed would show that a rather cavaliar treatment has been meted out in the present case. We do not see any justification for the court making such observations in the present case because the perusal of the order of sanction does not show any legal infirmity and such remarks by the Judge were clearly uncalled for. (Para 12)
(iii) Prevention of Corruption Act, 1988 Section 5(1)(e) - Applicability - Opportunity which is to be afforded to delinquent officer u/s 5(1)(e) satisfactorily explaining about his assets and resources is before the Court when trial commences and not at earlier stage - No opportunity granted before registration of case - No violation of principles of natural justice.
Held: For the formation of a prima facie opinion that an officer may be guilty of criminal mis-conduct leading to the filing of the First Information Report, there is no provision in law or otherwise which makes it obligatory of an opportunity of being heard to be given to a person against whom the report is to be lodged. (Para 14)
(iv) Criminal Prosecution - Mere fact that complainant is guilty of malafides - No ground for quashing prosecution.
Held, that the order of suspension was passed against the respondent, who was a police officer, after the filing of the First Information Report in the present case. A prima facie opinion had been formed that the provisions of Section 5(1)(e) of the Act were attracted and a notice dated 8-6-1988 had been sent to the respondent asking for his explanation. It is wrong to infer mala fides because of the passing of an order of suspension. (Para 16)
Further Held: The question of mala fides in a case like the present is not at all relevant. If the complaint which is made is correct and an offence had been committed which will have to be established in a court of law it is of no consequence that the complainant was a person who was enimical or that he was guilty of mala fides. If the ingredients which establish the commission of the offence or mis-conduct exist then the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides, would be no ground for quashing the prosecution. In the instant case, specific averments of facts have been made whereby it was alleged that the respondent had disproportionately large assets. Mala fide intention of the appellant in launching prosecution against the respondent with a view to punish him cannot be a reason for preventing the court of competent jurisdiction from examining the evidence which may be led before it, for coming to the conclusion whether an offence had been committed or not. (Para 18)
(v) Practice and Procedure - Constitution of India, 1950 - Art. 136 - Criminal prosecution quashed by High Court in exercise of inherent powers and writ jurisdiction - Appeal against - Respondent praying for withdrawal of writ petition with permission to agitate all contentions raised before Special Judge - Whether permissible? - (No).
Held: It appears strange that when a petition had been filed in the High Court, judgment obtained and the losing party comes to the Superior Court, then in order to avoid an unfavourable order, a request should be made for the withdrawal of the original proceeding in an effort to avoid an adverse decision from the Superior Court with a view to re-agitate the same contentions once again before the subordinate court. The High Court had exercised its jurisdiction by observing that there was no proper sanction accorded by the Government, principles of natural justice had been violated and conduct of the appellant showed the mala fides. In our opinion there was no warrant for the High Court coming to the said conclusion and the judgment has to be set aside. A party to the proceedings cannot be allowed, at this stage at least to take a chance and if he gets the impression that he will not succeed to seek permission to withdraw the original proceeding obviously with a view to re-agitate the same contentions, which have been or may be, adjudicated upon, by a higher court before the subordinate court though in different proceedings. We strongly deprecate a practice like this, if its exists. This will be opposed to judicial discipline and may lead to unhealthy practices which will not be conducive. (Para 9)
JUDGMENT
B.N. Kirpal, J. - These are appeals by special leave granted against the judgment of a Single Judge of Bombay High Court in exercise of his jurisdiction under Section 482 Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) and Article 227 of the Constitution of India whereby the proceedings under the Prevention of Corruption Act, 1988 which were pending against the respondent herein before the Special Judge at Greater Bombay, were quashed.
2. The respondent had joined the police force as a P.S.I. Cadet on 1-6-1966 and after completion of his training, he was posted as Police Sub-Inspector in the police force in 1968. He was promoted to the post of Police Sub-Inspector in September, 1974 and in August, 1981, he was promoted to the post of Assistant Commissioner of Police. It was the case of the respondent that he had held various important assignments and that his record was unblemished.
3. It appears that one A.C.P. R.B. Kolekar of Anti-corruption Bureau, Bombay on 1-1-1987 made enquiries with regard to the respondent who was, at that time, holding the post of Vigilance Officer in the office of the Transport Commissioner, Bombay. A first information report was recorded by ACP Kolekar on 16-2-1988 and the case was registered vide C.R. No. 4/88 under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act). Thereafter vide a letter dated 8-6-1988, respondent was informed that the Bureau was investigating an offence under Section 5(2) read with Section 5(10)(e) of the Act and the case had been registered on 16-2-1988 for possession of assets disproportionate to his known sources of income. As Section 5(1)(e) of the Act envisaged that the public servant should satisfactorily account for the pecuniary resources and property standing in his name or in the names of others, the respondent was, by the said letter dated 8-6-1988, required to attend the office of Anti Corruption Bureau on 20-6-1988 for the purpose of giving a satisfactorily explanation in respect of properties valued at Rs. 15,00,764.06/- which were found to be in his possession or in the names of others on his behalf. By his reply dated 20-6-1988, the respondent wrote back saying that as the Anti Corruption Bureau had registered a complaint against him, he was protected by Article 20(3) of the Constitution of India and, therefore, he could not be coh1pelled to make statement which may prejudice his case. The respondent, accordingly, stated that he will not say anything regarding the queries put to him.
4. On 3-2-1990, the Government of Maharashtra accorded, in exercise of its powers under Section 197(1)(b) of the Cr.P.C. and clause (b) of sub-section (I) of Section 6 of the Act, 1947 (equivalent to clause (b) of sub-section (I) of Section 19 of the Act, 1988), sanction to the prosecution of the respondent. In the recital of the said sanction order, it was stated that the Government of Maharashtra had fully examined the material before it and it had considered all the facts and circumstances discussed therein and was satisfied that there was a prima facie case made out against the respondent and that it was necessary in the interest of justice that he would be prosecuted in the court of competent jurisdiction for the said offence. In the schedule to the charge-sheet, the only person who was accused was the respondent and the said schedule also contained the allegations on the basis of which he was accused of having committed the said criminal misconduct. It was, inter alia, stated that during the course of his service between 1-1-1965 to 16-2-1988, he was found to be in possession of pecuniary resources or property in his name and or in the names of the members of his family, close relations and associates which were found to be disproportionate to his known sources of income to the extent of 5,66,604.01/-. The annexure to the schedule indicated the details of properties in his name and in the
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