Preliminary inquiry is not mandatory for FIR registration in corruption cases if the information discloses a cognizable offence.

JUDGMENT :

1) The petitioner has challenged FIR No.08/2018 for offences under Section 409, 420, 120-B RPC read with Section 5(2) of J&K PC Act registered with Police Station, Crime Branch, Kashmir.

2) The facts leading to the registration of the impugned FIR are that a communication bearing No.DATK/Try-1/11330-32 dated 29.12.2017 was addressed by Director, Accounts & Treasuries, Finance Department, Srinagar, Kashmir, to respondent Crime Branch, Kashmir, alleging therein that the inspection party deputed to conduct special audit of pension payment of Sub Treasury, Trehgam, for the period 01.04.2017 to 31.11.2017 has, prima facie, established misappropriation/embezzlement of Government money to the tune of Rs.86,48,900/ and that the commission of crime stands admitted by the petitioner who was posted as Treasury Officer, Trehgam. It is further recorded in the said communication that the petitioner has deposited the amount in the Treasury vide TR No.01 and 02 dated 07.12.2017. It is also stated in the said communication that the inspection party also observed double drawl/payment of Rs.34136/ made by the petitioner in favour of a pensioner, namely, Showkat Ali Wani, bearing PPO No.221759793, whose pension case stands already transferred by Treasury Trehgam to J&K Bank Trehgam. The communication goes on to furnish the details of the embezzled amount that had been transferred to the bank accounts of certain individuals through online mode with effect from 06.10.2017 to 16.11.2017.

3) On the basis of the aforesaid communication, the impugned FIR came to be registered by the respondent Crime Branch, Kashmir.

4) The petitioner has challenged the impugned FIR on the grounds that pursuant to the registration of the said FIR, the suspension order passed by the Government against the petitioner stands stayed by this Court in a writ petition filed by the petitioner. It has been further contended that there has been no loss to the State exchequer in the instant case, inasmuch as, admittedly, the petitioner has deposited whole of the amount, which is alleged to have been embezzled, as such, offence under Section 5(2) of the J&K PC Act is not made out against the petitioner. It has been contended that the shortfall in the amount deposited with the Treasury had taken place on account of malfunctioning of the treasury net application software and this fact was time and again brought to the notice of higher authorities by the petitioner, but no action was taken in the matter.

5) The respondent Crime Branch has contested the writ petition by filing its reply. In the reply, after narrating the contents of the impugned FIR, it has been contended that the allegations made in the impugned FIR, prima facie, disclose commission of cognizable offences which are serious in nature, therefore, the matter is required to be investigated.

6) I have heard learned counsel for the parties and perused record of the case including the Case Diary produced by the respondent Investigating Agency.

7) At the very outset, learned Senior Counsel appearing for the petitioner contended that the respondents have registered the impugned FIR without undertaking any preliminary verification. It has been submitted that as per the mandate of law as laid down by the Constitution Bench of the Supreme Court in the case of Lalita Kumari vs. Govt.of UP & Ors., (2014) 2 SCC 1, it is mandatory for an investigating agency to hold a preliminary enquiry in certain categories of cases which includes “ corruption cases ” . The learned Senior Counsel, in order to support his contention, has placed reliance upon the judgment of the Supreme Court in the case of Charansingh vs. State of Maharashtra and others, (2021) 5 SCC 649 and contended that without there being a preliminary enquiry, the impugned FIR could not have been registered and, as such, the same is vitiated.

8) In the above context, a perusal of the Case Diary would reveal that the respondent Investigating Agency has straight away on the ba