IMPORTANT POINT
Disproportionate Assets Case – In matters of corruption preliminary enquiry although desirable, but is not mandatory.

JUDGMENT :

SUDHANSHU DHULIA, J.

1. Leave granted.

2. The State of Karnataka has presently challenged the order dated 25.04.2024 passed by the Karnataka High Court where the learned Single Judge has quashed the entire proceedings initiated by the State against respondent no.1 (Sri Channakeshava. H.D.) for offences under Section 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short ‘PC Act’), in a case of Disproportionate Assets (or DA case as it is called).

3. In the year 1998, respondent no.1 was appointed as an Assistant Engineer in Karnataka Power Transmission Corporation Limited. Later, he was promoted to the post of Executive Engineer in Bangalore Electricity Supply Corporation (for short ‘BESCOM’).

4. According to the prosecution, the respondent no.1, while working as a public servant, had enriched himself illicitly and consequently, an FIR (No.54/2023) at P.S Karnataka Lokayukta, Bangalore Town (Bangalore) was registered on 04.12.2023 under Section 13(1)(b) read with 13(2) of the PC Act. Thereafter, the investigation commenced.

5. The respondent no.1 filed a Writ Petition before the High Court seeking quashing of above-mentioned FIR. The FIR was primarily challenged on the ground that there has been a violation of the second proviso to Section 17 of the PC Act which mandates that investigation cannot be done without the order of a police officer not below the rank of a Superintendent of Police (for short ‘SP’) in relation to the offence mentioned in clause (b) of sub-section 1 of Section 13. Section 17 of the PC Act reads as follows:

“17. Persons authorised to investigate.— Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)38, no police officer below the rank,—

(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;

(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of Section 8 of the Code of Criminal Procedure, 1973 (2 of 1974)39, of an Assistant Commissioner of Police;

(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank,

shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:

Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant:

Provided further that an offence referred to in clause (b) of sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.”

(emphasis supplied)

6. The learned Single Judge of the Karnataka High Court was of the opinion that although before lodging of the FIR, orders did come from the Superintendent of Police (‘SP’) but the SP had not conducted any preliminary enquiry before passing his orders and therefore, there was no application of mind by the SP. In the opinion of the learned Judge of the High Court, this would affect the entire proceedings and thus, High Court vide impugned order dated 25.04.2024 quashed the FIR.

7. This order of the High Court has been challenged by the State of Karnataka before this Court primarily on the ground that a preliminary enquiry visualized under the said proviso is desirable but not mandatory. Further, it has been argued on behalf of the State of Karnataka that, in the present case, SP had passed an order dated 04.12.2023 under Section 17 of the PC Act and this order was passed on consideration of relevant materials inasmuch as it was passed on the basis of a source report dated 05.10.2023.

8. There is no provision for a preliminary