2019 Supreme(SC) 1336

SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, JJ.
THE STATE OF TELANGANA – APPELLANT(S)
VERSUS
SRI MANAGIPET @ MANGIPET SARVESHWAR REDDY – RESPONDENT(S)
CRIMINAL APPEAL NO. 1662 OF 2019 (ARISING OUT OF SLP (CRIMINAL) NO. 3632 OF 2019) WITH CRIMINAL APPEAL NO. 1663 OF 2019 (ARISING OUT OF SLP (CRIMINAL) NO. 4074 OF 2019)
Decided On : 06-12-2019

IMPORTANT POINTS
(1) There is no prohibition in any of service rules that there cannot be any re-employment of a person who was once in a civil service of either Center or State.
(2) Scope and ambit of a preliminary inquiry being necessary before lodging an FIR would depend upon facts of each case.
(3) Sanction can be produced by prosecution during course of trial and same may not be necessary after retirement of accused officer.
(4) De facto doctrine was engrafted as a matter of policy.

Headnote:

(A) Prevention of Corruption Act,1988 – Sections 13(2) r/w 13(1)(e) and 17 – Criminal Procedure Code, 1973 – Section 482 – Constitution of India – Article 162 – High Court in a petition for quashing of charge sheet, held that there was no authorization to register crime and that informant cannot be investigating officer and quashed the same – OSD was re-employed for a period of one year by State Government in exercise of powers conferred under Article 162 of Constitution of India – There is no prohibition in any of service rules that there cannot be any re-employment of a person who was once in a civil service of either Center or State – Various facets of Policing in State fall within legislative competence of State and re-employment of a retired personnel who was a member of Indian Police Service, falls within executive power of State – As a re-employed officer, he was holding a civil post as his salary was being paid from State Exchequer – He was discharging duties and responsibilities in Anti-Corruption Bureau – He has discharged duties of Joint Director in Anti-Corruption Bureau in exercise of powers conferred by State Government – Acts undertaken in this regard by officer will be taken to be valid – High Court, while deciding a petition for quashing of proceedings under Section 482 of Code, could not have commented upon the nature of employment of OSD – Orders of High Court to quash proceedings against Accused Officer are not sustainable and consequently, set aside – Appeal filed by State allowed and matter remitted back to trial court for further proceedings in accordance with law. (Paras 10, 11, 14, 15, 22 and 26)

(B) Criminal Procedure Code, 1973 – Sections 154 and 482 – Prevention of Corruption Act,1988 – Sections 13(2) r/w 13(1)(e) and 17 – Acquisition of disproportionate assets – FIR – Scope and ambit of a preliminary inquiry being necessary before lodging an FIR would depend upon facts of each case – There is no set format or manner in which a preliminary inquiry is to be conducted – Objective of same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint – Once officer recording FIR is satisfied with such disclosure, he can proceed against accused even without conducting any inquiry or by any other manner on the basis of credible information received by him – It cannot be said that FIR is liable to be quashed for reason that preliminary inquiry was not conducted – Same can only be done if upon a reading of entirety of an FIR, no offence is disclosed – Type of preliminary inquiry to be conducted will depend on facts and circumstances of each case – There are no fixed parameters on which such inquiry can be said to be conducted – Any formal and informal collection of information disclosing a cognizable offence to satisfaction of person recording FIR is sufficient. (Paras 32, 33 and 34)

(C) Criminal Procedure Code, 1973 – Section 197 – Prevention of Corruption Act,1988 – Section 19 – Sanction for prosecution – Sanction can be produced by prosecution during course of trial and same may not be necessary after retirement of accused officer – Question as to whether a sanction is necessary to prosecute Accused Officer, a retired public servant, is a question which can be examined during course of trial – Lack of sanction was rightly found not to be a ground for quashing of proceedings. (Paras 35 and 36)

(D) Administrative Law – De facto doctrine was engrafted as a matter of policy and necessity to protect interest of public as well as individuals involved in official capacity of persons exercising duty of an officer without actually being one in strict point of law – These officers may not be officers de jure but by virtue of particular circumstances, their acts should be considered valid as a matter of public policy. (Para 18)

Facts of the case:

Order dated 24th December, 2018 passed by the High Court of Judicature at Hyderabad is the subject matter of challenge in present appeals, one by the State and the other by the Accused Officer. High Court partly allowed the petition filed by the Accused Officer under Section 482 of the Code of Criminal Procedure, 1973 qua the proceedings arising out of crime case.

Findings of Court:

High Court has rightly held that no ground is made out for quashing of the proceedings for the reason that the investigating agency intentionally waited till the retirement of the Accused Officer. The question as to whether a sanction is necessary to prosecute Accused Officer, a retired public servant, is a question which can be examined during the course of the trial.

Result : Appeals Partly allowed.