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SUPREME COURT OF INDIA
M.R. Shah, A.S. Bopanna, JJ.
The State of Jammu & Kashmir and others - Appellants
Versus
Dr. Saleem Ur Rehman – Respondent
Criminal Appeal No. 1170 of 2021
Decided On : 29-10-2021
(A) J&K Prevention of Corruption Act, 2006 – Sections 3, 5(1) (d) r/w 5(2) and Section 120B of RPC – Rule 3.16 of Vigilance Manual, 2008 – Criminal Procedure Code, 1973 – Section 482 – Alleged misappropriation of huge amount of government money – Entire criminal proceedings and FIR against respondent quashed by High Court – Offence under Prevention of Corruption Act is a substantive offence and investigation in respect of offence under PC Act, when considered and coupled with offence of conspiracy, there is no requirement of prior sanction of Magistrate – Merely because offence of conspiracy may be involved, investigation into substantive offence which is cognizable is not required to await sanction from Magistrate, as that would lead to a considerable delay and affect investigation and it will derail investigation – It cannot be said that there was any non-application of mind on part of Senior Superintendent of Police authorising inspector to enquire into FIR for offences under Sections 5(1)(d) r/w 5(2) of J&K PC Act, 2006 and 120-B of Ranbir Penal Code – Inspector who was authorised to investigate FIR for alleged offences was also authorised to arrest accused persons whenever and wherever necessary – All precautions are taken by Senior Superintendent of Police authorising Inspector to investigate FIR for offences under J&K PC Act, 2006 – There is no requirement of giving either special reasons or there is no requirement to mention reasons – What is required to be considered is whether there is an application of mind with respect to offences and relevant provisions with respect to authorisation – High Court erred in quashing criminal proceedings on the ground that as offence under Section 120B which is a non-cognizable, prior sanction as required under Section 155 of J&K Cr.P.C. is not obtained – As such, High Court has committed grave error in quashing entire criminal proceedings holding that authorisation in favour of Inspector was bad in law – FIR/criminal proceedings against respondent for offences under Sections 5(1)(d) r/w 5(2) of J&K PC Act, 2006 and 120B of RPC is to be investigated and proceeded further by authorised officer expeditiously. (Paras 8.4, 8.6, 9, 10 and 15)
(B) Criminal Procedure Code, 1973 – Section 482 – J&K Prevention of Corruption Act, 2006 – Sections 3, 5(1) (d) r/w 5(2) and Section 120B of RPC – Rule 3.16 of Vigilance Manual, 2008 – While holding a Preliminary Enquiry under Clause 3.16, whatever is conducted will be in form of enquiry into allegations to consider whether any prima facie case is made out or not which requires further investigation after registering FIR or not – While considering prima facie case for the purpose of registering FIR, some enquiry/investigation is bound to be there, however, same shall be only for the purpose of finding out a prima facie case for the purpose of registration of FIR only – Whatever enquiry is conducted at stage of Preliminary Enquiry, by no stretch of imagination, will be considered as investigation under Code of Criminal Procedure which can only be after registration of FIR – Even otherwise, merely because while holding a Preliminary Enquiry a detailed enquiry is made into allegations made against respondent which can be said to be only for the purpose of finding out a prima facie case for the purpose of registration of FIR and merely because some more time is taken in conducting Preliminary Enquiry before registering FIR, entire criminal proceedings cannot be quashed – There shall not be any prejudice caused to accused at stage of holding Preliminary Enquiry as it shall only be for the purpose of satisfying whether any prima facie case is made out with respect to allegations made in complaint which requires further investigation after registering FIR or not – High Court has materially erred in holding and declaring Clause 3.16 as ultra vires--High Court has erred in quashing entire criminal proceedings on such ground – Impugned judgment and order passed by High Court quashed and set aside. (Paras 13, 14 and 15)
Facts of the case:
By impugned judgment and order and in exercise of its extra-ordinary jurisdiction, High Court has quashed entire criminal proceedings and FIR against respondent for offences punishable under Sections 5(1) (d) r/w 5(2) of J&K PC Act, 2006 and Section 120B of RPC – High Court has also declared Rule 3.16 of Vigilance Manual, 2008 dealing with Preliminary Enquiry (PE) as ultra vires – While quashing criminal proceedings, High Court has also quashed Entrustment Order dated 16.11.2012 passed by Senior Superintendent of Police, VOK, Srinagar authorising Inspector to investigate the offences, which authorisation was in exercise of powers under second proviso to Section 3.
Findings of Court:
Allegations against respondent are in respect of his individual capacity – Besides Directors of Private Limited Companies, respondent no.1 and other officials have been arrayed as an accused – Therefore, there is no question of any vicarious liability and observations made by High Court that in absence of main conspirators – Private Limited Companies and/or their in-charge persons, respondent no.1 cannot be held liable is unsustainable and cannot be accepted.
Result : Appeal allowed.
JUDGMENT :
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 07.05.2018 passed by the High Court of Jammu & Kashmir at Srinagar in O.W.P. No. 1961/2015, by which the High Court in exercise of its extra-ordinary jurisdiction has quashed the criminal proceedings being FIR No. 32/2012 and has declared Rule 3.16 of the Vigilance Manual, 2008 dealing with the Preliminary Enquiry (PE) being in direct conflict with the Constitution Bench Judgment of this Court in the case of Lalita Kumari v. Government of Uttar Pradesh, reported in AIR 2014 SC 187 = 2014 (2) SCC 1, and consequently has declared the same ultra vires, the State has preferred the present appeal.
2. That an FIR being FIR No. 32/2012, Police Station, VOK was registered against the respondent herein under Section 5(1)(d) r/w 5(2) of the J&K Prevention of Corruption Act, 2006 (hereinafter referred to as the ‘J&K PC Act, 2006’) and Section 120B of the Ranbir Penal Code (hereinafter referred to as the ‘RPC’) alleging inter alia that during 201011, the Director Health Services, Kashmir along with the other accused persons misappropriated the huge amount of government money by way of effecting purchases of sub-standard medical kits under National Rural Health Mission (NRHM) at highly exorbitant rates and in violation of the conditions of supply orders placed by the department. It was alleged against the respondent as under :
(ii) The quoted rates by the 4 CPSEs were far in excess when compared to rates on which purchases had been affected during previous year. The Respondent herein wilfully ignored the rates at which the same kind of drug kits were purchased by the department from private companies as per rate contract dated 28-03-2009 valid for one year approved by Rate Contract Committee No.1 of Health & Medical Education whereby the rates of drug kits were far less than as quoted by the 4 CPSEs, the comparison is as under:
S. No. Name of drug kit Approved rates valid for year 2009-10 as per rate contract of Purchase Committee No.1 Rates quoted by the four CPSEs in year 2011 Differences of Rates
1. Drug Kit-A for sub-centre Rs.3400/- per kit Rs. 6,559- per kit Rs. 3,159 per kit
2. Drug Kit-B for sub centre Rs.1855/- per kit Rs.4,368/- per kit Rs.2,513/- per kit
3. Drug Kit for ASHA Rs.931/- per kit Rs.1878/- per kit Rs.947/- per kit
(iii) No market survey was conducted to ascertain the genuineness of rates quoted by the firms nor any negotiations were done to ensure that Government exchequer was not put to any loss etc during the year 2010-11.
(iv) No samples of drug kits were obtained to verify the quality control check over packing & Packaging of medicines and kits.
(v) The Respondent herein purchased NRHM kits not from the original manufacture but from suppliers at exorbitant rates.
(vi) The purchased kits and the medicines were not of required standard. Further maximum drugs/items constituting the three types of kits were actually been manufactured by private agencies and not by the CPSEs themselves or by their subsidiaries as a result of which undue benefit has accrued to the private agencies under the garb of PPP, which was never the intent of it.
(vii) As per the guidelines laid down by Ministry of Health & Family Welfare Govt. of India and Ministry of Chemicals & Fertilizers Govt. of India, Purchase Preference Policy (PPP) for CPSEs was valid only in respect of 102
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