1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE19H DAY OF OCTOBER, 2023 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION NO.15251 OF2022GM-RES) BETWEEN SRI D K SHIVAKUMAR S/O LATE SRI S K KEMPEGOWDA AGED ABOUT60YEARS R/A NO.252, 18TH CROSS SADASHIVA NAGAR BENGALURU - 560 080 AS INDICATED IN THE FIR SRI D K SHIVAKUMAR S/O LATE SRI D K KEMPEGOWDA FORMER MINISTER OF KARNATAKA PRESENTLY MLA KARNATAKA LEGISLATIVE ASSEMBLY BANGALORE R/AT HOUSE NO.602/A5 KENKERI18H CROSS ROAD UPPER PALACE ORCHARDS SADASHIVANAGAR BENGALURU - 560 080 ... PETITIONER (BY SRI C.H. JADHAV, SENIOR ADVOCATE AND SRI SANDESH J.
CHOUTA, SENIOR ADVOCATE FOR SRI CHETHAN JADHAV, ADVOCATE) AND CENTRAL BUREAU OF INVESTIGATION ANTI-CORRUPTION BRANCH BENGALURU2NO.36, BELLARY ROAD GANGANAGAR BENGALURU - 560 032 REPRESENTED BY ITS SUPERINTENDENT OF POLICE ... RESPONDENT (BY SRI PRASANNA KUMAR P, SPECIAL COUNSEL) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA READ WITH SECTION482OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE IMPUGNED FIRST INFORMATION REPORT IN RC10A) /2020 REGISTERED BY THE RESPONDENT, AGAINST THIS PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTION13(2) READ WITH SECTION131)(e) OF PREVENTION OF CORRUPTION ACT, 1988 VIDE ANNEXURE-F AND ALL FURTHER PROCEEDINGS PURSUANT THERETO, ETC. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON317.2023 THIS DAY, THE COURT MADE THE FOLLOWING:
ORDERThis writ petition is filed by the petitioner under Articles 226 and 227 of Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') to quash the FIR registered in RC No.10(A)/2020 by the respondent-Central Bureau of Investigation (CBI), against this petitioner for the offence punishable under Section 13(1)(e) read with 3 Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'P.C. Act').
2. Heard the arguments of both the learned Senior counsels appearing for the petitioner and learned Special counsel for the CBI.
3. The brief facts of the case of the petitioner is that, the Income Tax Authorities conducted raid on the house of the petitioner and they said to have recovered Rs.8,59,69,100/- out of which Rs.41,00,000/- were recovered from the petitioner. Subsequently, the Income Tax Authorities registered a complaint against the petitioner under the Income Tax Act in Spl.C.No.759/2018 and on the basis of the said offence, the Enforcement Directorate (ED) registered the FIR against the petitioner in ECIR/04/HQ/2018 for the offence punishable under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (for short 'PML Act'). They issued the notice to the petitioner under Section 50 of the PML Act and then the ED sent a report to the Chief Secretary of Karnataka 4 given consent under Section 6 of The Delhi Special Police Establishment Act, 1946 (in short 'DSPE Act') and in turn the Chief Secretary of Karnataka sanctioned on 25.9.2019, for prosecuting the case against the petitioner under the P.C. Act. Accordingly, the CBI registered FIR on 03.10.2020 in R.C.No.10(A)/2020 for the offence punishable under Section 13(1)(e) read with Section 13(2) of the P.C. Act. The petitioner challenged the FIR on various grounds.
4. Learned Senior counsel for the petitioner Sri.Sandesh Chouta has contended that the petitioner is the President of Karnataka Pradesh Congress Committee (KPCC). He is renowned politician and also engaged in various businesses like mining, real estate development, and other such businesses and he was also a member of Legislative Assembly from 1989, till date. He is representing in Satanuru Assembly Constitution and other constituency. He is occupied in various positions and serving the people of Karnataka. During his tenure as MLA, 5 the Indian National Congress Party offered the MLA ticket and he was elected as MLA, he has worked as Minister in the Congress Government, he has discharged the duties with true faith and allegiance to the Constitution and the rule of law. He further contended that he hails from agricultural background, his entire family was also involved in agricultural activities and development of the lands and generated substantial wealth from his successive businesses, in various fields including the Education field. The petitioner further contended during several decades being Income Tax Assessee and has been filing Income Tax returns without any evasion. The petitioner also required to file affidavit along with the nomination paper, while contesting the election before the returning officer and also declared Assets and Liabilities before the Karnataka Lokayuktha. The petitioner also earned good respect and command in the State of Karnataka, but the opposite parties hatched many conspiracies against the petitioner, to scuttle his political growth and made several attempts to tarnish his image and reputation. Presently, 6 the power with the Central Government under whose control the CBI operates is inimical to the petitioner.
5. It is further contended that in July-August 2017 the petitioner one among the backbone of the Congress National party, during Rajysabha elections of the State of Gujarat, he played active role in discharging such duties, which was appreciated at the national level as a resultant he was made target of the department and agencies from such time onwards.
6. It is further contended on 02.08.2017, when the petitioner was at resort in outskirts of Bengaluru, while discharging his political duties, a search was conducted by the Income Tax officials who also visited the resort and he was compelled to leave the place. Later, he was brought to the house and during various raid, the Income Tax Authorities have collected a sum of Rs.8,59,69,100/- out of which only Rs.41 lakhs was recovered from the petitioner. Subsequently, the petitioner offered the explanation for the source of funds in the assessment year 7 2018-19, which was filed subsequently. The Income Tax Authorities initiated proceedings for evading payment of tax under the Income Tax Act. It is further submitted that Income Tax Department filed complaints before the Special Court for economic offences under Section 200 Cr.P.C. for the offences punishable under Sections 276-c(1), 277, 278 of Income Tax Act and Sections 193, 199, 120B of IPC. The Principal Director of IT accorded sanction to prosecute and the said court issued the summons to the petitioner.
7. It is further contended, that the petitioner is a sitting MLA and subsequently the case was transferred to Special Court trying the offences relating to MP and MLA and renumbered as CC.No.3079/2021. It is further contended that the petitioner filed Spl.C.No.3821/2020 in respect of the said special case, the Hon'ble Supreme Court issued notice to the Income Tax Authority.
8. It is further contended on 29.8.2018, the Enforcement Directorate, Delhi registered case against the petitioner in ECIR/04/HQ/2018, based on the information 8 shared by the Income Tax Authorities. Thereafter on 17.1.2019, the ED issued summons under Section 50 of the PML Act and demanded his presence in Delhi for questioning. The petitioner approached High Court for challenging the ED proceedings in Writ Petition.No.6210/2019, which was dismissed and the petitioner himself furnished all relevant information and his source of income and on various allegation, the ED arrested the petitioner on 3.9.2019 and he was granted bail on 23.10.2019 by Delhi High Court.
9. Learned counsel for the petitioner further contended the ED filed an appeal against the granting of the bail, which also came to be dismissed. The petitioner also filed the SLP for dismissing the petition filed by the petitioner against the ED proceedings in SLP.Crl.No.9910/2019, which is pending. Subsequently, ED filed complaint before the special court for PMLA in Delhi on 20.06.2022. The investigation conducted by the ED alleging collected several documents and some 9 transactions were conducted on behalf of the petitioner through public servants. On 09.09.2019, ED issued letter to State Government under Section 66(2) of PMLA Act, for taking action. The State Government by obtaining opinion of the Advocate General referred the letter to the CBI for investigating the case against the petitioner. The petitioner also filed a Writ Petition No.10479/2020 for challenging the sanction for investigation to CBI where there was an order not to take coercive step, which is pending for consideration. It is further contended this FIR was registered by the CBI on the basis of the sanction of the State Government and on the report of preliminary enquiry conducted by the CBI. It is contended by the petitioner, the Statement of his income, expenditure and assets were already submitted to the respondent one year back and till now they have not filed closure report under Section 173 of the Cr.P.C. The respondent agency issuing summons to several persons to appear for investigation and abnormal delay in filing the report under Section 173 of Cr.P.C is causing great hardship and embarrassment to 10 the petitioner. The FIR does not disclose the alleged offence and the so called investigation is continued for unreasonably long period, hence the petitioner filed this petition before the Court.
10. The petitioner also raised further grounds as follows; (i) The allegation made in the FIR even if they are taken on their face value and accepted in their entirety do not prima facie constitute any offence under Section 13 1(e)read with 13(2) of PC Act that. (ii) The provision of Section 13 of PC Act that the accused is a public servant, as an individual having possession of the property disproportionate to his known source of income, which the public servant cannot satisfactorily account. The provision un-mistakenly is applicable to a public servant which does not contemplate the family as a unit. The possession of the property by a family as own belonging to any member of the family other than public servant is irrelevant, the provision does not contemplate the property held by joint family or 11 a firm. Hence, the public servant not required to give satisfactory explanation for his income but not others. (iii) The expression 'family members' is a vague term, at present there are number of family members and their identity not disclosed. (iv) the FIR does not refer to any property in possession of the sole accused which is referred as Sri.D.K. Shivakumar and his family members together at para 12.5.1 of the FIR stating that they are in possession of movable and immovable property to the tune of 128,60,81,700/- and total value of asset during check period of as on 304.2018 is tune of Rs.162,53,44,494/- and their toal income and receipts was tune of Rs.166,79,58,216/- total expenditure was Rs.113,12,16,585/- thereby they are found in possession of disproportionate assets worth of Rs.74,93,40,69/- which is 44.93%. The same cannot be satisfactorily explained by the accused. (v) It is further contended, the extract from FIR discloses the property of the accused and his family and also expenditure and 12 disproportionate assets and do not pertain to the value of assets, expenditure which is required as per the law. There is no allegation that any other person is in possession of the property on behalf of the accused. The registration of the FIR is only on the basis of allegation which do not constitute an offence for cognizable offence. The cognizable offence defined under Section 13(1)(e) of PC Act was defined and it attracts only when the public servant failed to satisfactory give explanation of peculiar resource or of property. There is no indication of the fact, that any opportunity to explanation given to the petitioner, to show that he cannot satisfactorily explain that itself is illogical. (vi) The impugned FIR registered by the CBI, the ED on whose initiation, the Government accorded sanction and have taken investigation in order to target the petitioner out of political malafide's against him. (vii) The earlier Writ Petition No.10479/2020 filed before this court in respect of according sanction by the State Government, while registering on 3.10.2020 there was interim protection available for the petitioner in the said 13 writ petition, despite the same, the FIR has been registered. Search and seizure was conducted which indicates the malafide of respondent agency. (viii) The FIR registered for the offence under Section 13(2) read with 13(1)(e) of PC Act, section 13 (2) is a penal provision for the offence under Section 13(1) of the PC Act, which came into force from 26.7.2018 vide 16 Act of the 2018. Section 13(1)(a) to (e) of PC Act are substituted by new provisions i.e., section 13(1)(a) and (b). There is no provision as 13(1)(e) of PC Act in the new amendment of the PC Act. hence invocation of penal provision under Section 13(2) to punish the alleged offence under non-existing provision is fatal to the very maintainability of the FIR. (ix) The respondent has malafidely registered FIR were punishable under the un- amended PC Act as it stood prior to the amendment of 2018 as Amendment Acts came into force from 26.7.2018. The action of the respondent is fundamentally , inherently illegal. The illegality has resulted and caused injustice to the petitioner, the explanation to the known 14 source of income in the amended Act is wider than the explanation prior to the amendment and this benefit ought to be retrospectively given in investigation, imitated after the Amendment Act came into force. (x) The details of preliminary enquiry is missing in the FIR which is contravention of the chapter 9 of the CBI Manual, the FIR is without proper application of mind. The non extending opportunity to explain the source of income during preliminary enquiry has lead to failure of principle of natural justice. (xi) The petitioner hails from respective family and he was paying Income Tax regularly. (xii) The petitioner also submitted the nomination and the affidavit for having declared the assets and liability before the Election commission and also the declaration of Assets and Liabilities to the Lokayuktha. He also submitted, that the letter issued by the Income tax authorities for asking him to pay balance amount and the Income Tax Authorities not satisfied on the reply and prepared an appeal to Income Tax Appellate Tribunal. 15 (xiii) Registering the FIR by ED as well as CBI which amounts to multiple agencies investigating the same set of facts and allegations with a malafide intentions which is opposed to the constitution and fundamental right of the petitioner. (xiv) The petitioner submitted the Statement of Income, Expenditure and Assets on 15.6.2021, despite lapse of one year, no final report was filed for more than one year. (xv) The FIR registered by CBI is beyond the Government order for according sanction and the investigation took up, without any authority of law. (xvi) The petitioner is sitting MLA of Karnataka Assembly, the provision of 17A of PC Act, are squarely applicable to him when conducting an enquiry or investigation to public servant, it is mandatory to obtain sanction from the competent authority. No sanction under Section 17A has been issued. (xvii) As per the judgment of Hon'ble Supreme Court in Premchand Singh Vs State 16 of Uttar Pradesh, reported in 2017 SCC Online All 1264, the second FIR is not sustainable. (xviii) The IT Department, ED and CBI are all investigating the very same alleged offence against the petitioner with an ulterior motives and satisfy the political vendetta of rivals. (xix) It is further contended, there is no reasonable ground to believe the petitioner committed an offence under the PC Act, the FIR was registered by the CBI with a malafide and Arbitrariness.
11. On the above said grounds, the petitioner prayed for quashing the FIR. Learned senior counsel relied upon various judgment of the Hon'ble Supreme Court in support of his case.
12. Learned Senior counsel, Sri.C.H.Jadhav also argued in length on behalf of the petitioner.
13. Per contra, the respondent-CBI filed statement of objections and the learned counsel for the CBI has 17 contended that the Income Tax Authorities registered a complaint against the petitioner under the Income Tax Act, as well as IPC and in pursuance of the said complaint, the offences are schedule offences under the PMLA Act. Hence ED commenced the investigation against the petitioner, in order unearthed the proceeds of crime. During the course of investigation, the ED ascertained that the petitioner had undisclosed income of approximately Rs.50 crores and was involved in numerous benami investment in properties through his family members that of Rs.8.59 crores of unaccounted money was seized from the petitioner. The investigation conducted by the ED has felt that the petitioner violated provisions of PC Act, while working in Government of Karnataka. Hence, finding of ED was sent to the Chief Secretary of Government of Karnataka, inturn, the State Government given consent to the CBI for investigating the matter against the petitioner vide order dated 25.9.2019. In pursuance of the notification dated 27.2.2020, the CBI registered the FIR against the petitioner on 03.10.2020 for the offence punishable under 18 Section 13 (1)(e) read with 13 (2) of PC Act. It is further contended that during the course of enquiry, it was disclosed that the petitioner and his family members were in possession of movable and immovable properties to the tune of Rs.33,92,62,793 crores at beginning of check period dated 1.4.2013, as per the election affidavit filed by him on 13.4.2013. During the check period the family members have acquired Rs.128,60,81,700/- and the value of assets, end of the check period as on 13.4.2018 was Rs.162,53,44,494/-. It is further stated that the total income of the family members and the petitioner was Rs.166,79,58,216/- and expenditure was Rs.113,12,16,584/-. It was revealed the petitioner was in possession to assets in disproportionate to tune Rs.74,93,40,069/- which is 44.93%. The public servant having disproportionate asset than the known source of income and he cannot satisfactorily explain, hence FIR has been registered. 19
14. It is further contended previously granting of sanction of the Government as has been challenged by one Shashikumar Shivanna which was dismissed. The order was also confirmed and denying the other allegations made in the petition against respondent for false implication as false and contended the petitioner being public servant, amassed properties in his name and also family members more than the known source of income, also having property in benami names. The investigation is under progress. The offence made out in the FIR is cognizable one. Therefore, the FIR cannot be quashed. Even the FIR is not encyclopedia to give all details. The petitioner already submitted his stand and his assets, by submitting the statement Nos.1 to 6 which is under scrutiny, there are lot of properties and documents produced by the petitioner which required more time for investigation. Further contended, the contention of the petitioner that registering of the ECIR and taken up the investigation no barring on the investigation taken by the CBI and the PMLA Act, and the offence under PC Act, are 20 independent and distinct from one another. The respondent denied the para wise allegation made by the petitioner and also contended the judgments relied by the petitioner does not fall in any parameters by the principle laid down by the Hon'ble Supreme Court in the case of STATE OF HARYANA VS. BHAJANLAL reported in 1992 SUPP. (1) SCC335 The State Government given consent on the basis of the opinion of the advocate general and the sanction granted by the State Government, has been challenged which was upheld by the court. Therefore, it is contended the petitioner not made out any ground to interfere with the investigation and hence prayed for dismissing the petition. Learned special counsel relied upon various judgments of the Hon'ble Supreme Court.
15. Having heard the arguments of both side, the point that arise for my consideration is:
" Whether the petitioner made out sufficient ground for quashing the FIR registered by the CBI in R.C.No.10(A)/2020 for the offence 21 punishable under Section 13(1)(e) read with 13(2) of P.C. Act?.
16. The learned counsel for the petitioners mainly challenged the FIR on four grounds which are as under: (i) The investigation is illegal since there is no prior order of the police officer not below the rank of Superintendent of Police as mandated under Section 17 of P.C. Act. (ii) The investigation commenced by the CBI without obtaining previous approval under Section 17A of P.C. Act. (iii) The FIR is liable to be quashed on the ground that private individuals have been clubbed with the public servant, not on account of benami transaction holding that the public servant possesses disproportionate Assets. (iv) During the arguments, it is also contended the very calculation made by the CBI for registering the FIR in respect 22 of Assets and Liabilities during beginning of the check period is not correct. (v) The initiation of present proceedings is liable to be quashed on the ground of malafide attributable to political opponents (political malice).
17. Point No.(i) - Regarding Investigation taken by the Police Inspector of CBI is illegal as there is no prior order for authorizing a Police Officer not below the rank of Police Inspector by S.P. as mandated under Section 17 of the P.C. Act.
18. The learned counsel for the petitioner has strenuously contended that the Police Officer below the rank of S.P. cannot investigate the matter and there is no order for authorizing the Investigating Officer below the rank of S.P. to investigate the matter. Therefore the very investigation itself is liable to be quashed. On the other hand, the CBI counsel has vehemently contended that in the FIR itself the Investigating Officer has been named by 23 the S.P. while registering the FIR and there was authorization issued by the Higher Officer for authorizing the Additional S.P. to investigate the matter, therefore, the investigation taken by the CBI cannot be called as illegal. It is worth to mention the provisions of Section 17A of the amended P.C. Act which is as under:
"17. Persons authorized to investigate: NOTWITHSTANDING anything contained the Cr.P.C. 1973 (2 of 1974 ) no police office below the rank, - (a) In the case of Delhi Special Police Establishment, of an Inspector of Police; (b) --- (c) --- 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 there for without a warrant : PROVIDED xxxx (are not relevant) 24 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.
19. On bare reading of the provision of Section 17A of amended P.C. Act, an Inspector of Police can investigate the matter in DSPE Act registered by the CBI under the amended P.C. Act, 2018 with effect from 26.07.2018 and other than the metropolitan areas, like Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area, an Assistant Commissioner of Police can investigate the matter and elsewhere a Dy.S.P. or equivalent Police Officer can investigate the matter.
20. However, the Section 17 of the un-amended P.C. Act, where the case was registered by the CBI an Inspector of Police can investigate the matter provided other officers without the order of a Police Officer not below the rank of a Superintendent of Police. The 25 Unamended P.C. Act, 1988 prior to 2018 under Section 17 empowers the Inspector or Police to investigate the matter without permission of the Magistrate provided if he has been authorized by the Superintendent of Police. Now, on perusal of the FIR registered by the CBI at Column No.13(2), reveals, it is referred the name of the Investigating Officer along with the rank as under:
1. Sri Y Harikumar, Addl. Supdt. of Police, CBI, ACB, Bangalore 21. The FIR has been registered by one Thomson Jose, IPS, Superintendent of Police and Head of Branch, CBI, ACB, Bangalore. On perusal of the FIR, it is clearly mentioned that the S.P. registered the FIR and he has authorized an Addl. S.P. as Investigating Officer.
22. The learned Senior counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of State of M.P. and Others vs. Ram Singh and other connected appeals reported in (2000) 26 5 SCC88in a similar circumstances, the Hon'ble Supreme Court has held at paragraph No.15 as under:
"15. We are not satisfied with the finding of the High Court that merely because the order of the Superintendent of Police was in typed pro forma, that showed the non-application of mind or could be held to have been passed in a mechanical and casual manner. As noticed earlier the order clearly indicates the name of the accused, the number of the FIR, the nature of the offence and power of the Superintendent of Police permitting him to authorize a junior officer to investigate. The time between the registration of the FIR and authorization in terms of the second proviso to Section 17 shows further the application of mind and the circumstances which weighed with the Superintendent of Police to direct authorization to order the investigation.
23. The Hon'ble Supreme Court has set aside the order of the High Court for quashing the FIR on the ground that there is no authorization for investigating the matter below the rank of S.P. 27
24. The learned CBI counsel also produced the authorization issued by the S.P., Thomson Jose on 03.10.2020 authorising Sri Y.Harikumar, ASP to investigate the matter and subsequently, after the retirement of the said Harikumar, one M.K. Baiju, the Inspector of Police has been authorized to investigate the matter as per the order of S.P. dated 31.07.2021 and subsequently on 8.2.2022, an another officer one Satish Chandra Jha, Deputy Superintendent of Police was appointed as Investigating Officer. On perusal of these authorization issued by the S.P. time to time, by exercising the power under Section 17 of the P.C. Act. Therefore, the contention of the learned counsel for the petitioner that investigation taken by the officers below the rank of S.P. is illegal and it cannot be acceptable on the ground urged by the learned Senior counsels for the petitioner and in view of the judgment passed by the Hon'ble Supreme Court in Ram Singh case supra, the FIR cannot be quashed. 28
25. Point No.(ii) - Regarding the previous approval of the Government required under Section 17A of P.C. Act. The learned Senior counsel for the petitioner has strenuously contended that in order to register the FIR under the P.C. Act, the prior approval of the State Government under Section 17A of P.C. Act is required which is a mandatory under Section 17A of the P.C. Act. But the CBI has not obtained any such order under Section 17A of the P.C. Act. The learned Senior counsel relied upon various judgments of the Hon'ble Supreme Court which are referred below after referring the arguments of the CBI counsel 26. The learned CBI counsel has vehemently contended that prior approval under Section 17A of the P.C. Act is not applicable to the present case and contended that Section 17A is applicable only to the cases where the "offence is relatable to any recommendation made or decision taken by such public servant in discharge of official functions or duties and it is contended that 29 Section 17A is applicable only to those recommendations or decisions taken during the discharge of duties and not for every offence as suggested by the learned counsel for the petitioner and further contended that the alleged offence against the petitioner under Section 13(1)(e) of the P.C. Act which is not relatable to any recommendations/decisions taken during official duty. Hence, the question of obtaining permission under Section 17A of P.C. Act does not arises.
27. In support of his arguments, the learned CBI counsel relied upon the judgment of Co-ordinate Bench of this Court in the case of B.S. Yediyurappa vs. State of Karnataka passed in Writ Petition No.29046/2017.
28. In view of the rival contention of both the side, it is worth to mention Section 17A of the amended P.C. Act which is as under:
"Section 17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by 30 public servant in discharge of official functions or duties. 1[17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.-- No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval-- (a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government; (b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:
31. Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.].
29. The learned Senior counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of Yashwant Sinha and Others vs. CBI reported in (2020) 2 SCC338 wherein at paragraph Nos.118 and 119, it has held as under:
"118. Therefore, the petitioners have filed the complaint fully knowing that Section 17-A constituted a bar to any inquiry or enquiry or investigation unless there was previous approval. In fact, a request is made to at least take the first step of seeking permission under Section 17-A of the 2018 Act. Writ Petition 32 (Criminal) No.298 of 2018 was filed on 24-10- 2018 and the complaint is based on non- registration of the FIR. There is no challenge to Section 17-A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17-A continues to be on the statute book and it constitutes a bar to any inquiry or enquiry or investigation. The petitioners themselves, in the complaint, request to seek approval in terms of Section 17-A but when it comes to the relief sought in the writ petition, there was no relief claimed in this behalf.
119. Even proceeding on the basis that on petitioners' complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17-A. I am, therefore, of the view that though otherwise the petitioners in Writ Petition (Criminal) No.298 of 2018 may have made out a case, having regard to the law actually laid down in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC1: (2014) 1 SCC (Cri) 524]. , and more importantly, Section 17-A of the Prevention of 33 Corruption Act, in a review petition, the petitioners cannot succeed. However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent in Writ Petition (Criminal) No.298 of 2018 from taking action on Ext. P-1, complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17-A of the Prevention of Corruption Act.
30. In another judgment passed by this Court in Writ Petition No.6732/2023 dated 22.05.2023 in the case of L Sathish Kumar vs. State by ACB, wherein this court has taken the view that without obtaining sanction or permission under Section 17A of the P.C. Act, the FIR cannot be sustainable under the law and has held that the police have purposely registered the FIR under the un- amended P.C. Act in order to avoid for obtaining the permission under Section 17A of the amended P.C. Act.
31. Learned counsel also relied upon the another judgment of the Co-ordinate bench of this Court in Writ 34 Petition No.505/2023 (GM-RES) dated 10.03.2023 in the case of Smt. Noor Zahara Khanum and Others vs. State by DPAR and the Additional Director General of Police, where the Court has taken similar view and quashed the FIR and has held at paragraph No.26 of the judgment which is as under:
"26. The formation of opinion by the statutory authority while granting prior permission under Section 17A should reflect application of mind with reference to the material available on record. The provision is akin to the recording of reasons while granting prior permission under Section 19 of the Act. The bedrock of these provisions are to avoid or discourage malicious and vexatious prosecution. In the teeth of the afore-narrated facts, the order granting prior approval, impugned in the writ petition, would, without a shadow of a doubt result in a vexatious prosecution against the petitioners. The order impugned falls foul of the intent and purport of Section 17A. Therefore, the order impugned loses its legal legs to stand as it is ex-facie illegal."
35 32. The learned Senior counsel, Sri C.H. Jadhav also relied upon the order of the Co-ordinate bench of this Court in Writ Petition No.8905/2022 (S-RES) and connected matter in the case of Smt. Shreeroopa vs. State by DPAR and Others, where the Co-ordinate Bench has quashed the FIR on the ground that no prior approval has been obtained under Section 17A of the P.C. Act.
33. The learned Senior counsel, Sri C.H. Jadhav also relied upon another judgment in the case of State of Rajasthan vs. Tejmal Choudhary reported in MANU/SC/1365/2021, wherein the Hon'ble Supreme Court has held that the provisions of Section 17A is having prospective effect in view of the amended P.C. Act with effect from July 2018 and held at paragraph No.7 of the judgment which is as under:
"7. It is a cardinal principle of construction that every statute is prospective, unless it is 36 expressly or by necessary implication made to have retrospective operation. There is a presumption against retrospectivity. An express provision should ordinarily be made to make a statute retrospective. The presumption against retrospectivity may also be rebutted by necessary implication as held by this Court in Akram Ansari vs.Chief Election Officer reported in (2008) 2 SCC95 which has been referred to and relied upon by the Kerala High Court in this judgment in K.R.Ramesh vs. Central Bureau of Investigation and Another reported in 2020 SCC Online Kerala 2529. The device of a legal fiction can also be used to introduce retrospective operation. Generally, it is considered that every statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made retrospective.
34. On perusal of the judgment of the Hon'ble Supreme Court in the above said cases, wherein, the amended P.C. Act, 2018 came into force from 26.07.2018 onwards and the Hon'ble Supreme Court has held that permission under Section 17A of P.C. Act is necessary for 37 conducting any enquiry or inquiry or investigation into any offence done by public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions. On the other hand, the CBI counsel has relied upon the order passed by the Co-ordinate Bench in B.S Yediyurappa's case, wherein the Co-ordinate Bench of this Court has held that Section 17A approval is required only if the offence committed by the public servant by taking any decision during the discharge of any public duties. Here in this case, the offence committed by the petitioner is punishable under Section 13(1)(e) of the P.C. Act for amazing the disproportionate properties more than known sources of income and it is not the case where while discharging the public duty, the petitioner has taken any decision that while discharging the official functions as public servant, therefore, by considering the judgment of the Hon'ble Supreme Court in the above said cases, it is clear, that the offence must be committed for making any recommendations and taking any decisions by the public 38 servants while discharging the official duty, then only the approval of Section 17A of P.C. Act is required. But here in this case, no such decisions taken by the petitioner or any offence committed by the petitioner which falls under the category of taking any decisions or making any recommendations. Therefore, the contention of petitioner counsel cannot be acceptable that prior approval of Section 17A of P.C. Act is required in this case for investigating the matter. It is also pertinent to note that the State Government while giving sanction or consent under Section 6 of the DSPE Act, obtained the opinion of the learned Advocate General, wherein the Advocate General has opined that under Section 17A of P.C. Act, the previous approval is not required in this case. Based upon the said advice, the State Government given consent for CBI under Section 6 of the DSPE Act for investigating the matter for registering the FIR. By considering the facts and circumstances of the case which is registered under Section 13(1)(e) of P.C. Act, the approval under Section 17A of P.C. Act is not required. Therefore, the contention 39 of the petitioner counsels cannot be acceptable. Hence, I answered this point against the petitioner and in favour of the CBI.
35. Learned Senior counsel for the petitioner also contended that the CBI purposely registered the FIR under the un-amended P.C. Act and not registered the case under the provisions of Section 13(1)(a) and (b) of amended P.C. Act in order to avoid for obtaining the approval under Section 17A of the P.C. Act and the learned counsel has relied upon the order passed by the Co- ordinate Bench of this Court as well as Hon'ble Supreme Court judgments referred above. On the other hand, learned counsel for CBI has contended that the FIR was registered for the offence committed by the petitioner for the check period between 01.04.2013 and 30.04.2018 which is prior to the bringing the amendment to the P.C. Act which is enforced from 26.07.2018 onwards. Therefore, the respondent counsel contended that the offence committed by the accused petitioner cannot be 40 registered under the amended P.C. Act. Therefore, it is contended there is no requirement of any approval under Section 17A of the P.C. Act and learned Senior counsel for the petitioner contended that the FIR registered for non existing provisions of law, therefore, FIR is not sustainable. On the other hand, the respondent CBI counsel has contended that the accused cannot be charge sheeted under the new Act for the offence committed during the enforcement of old Act. Hence, prayed for dismissing the petition.
36. Upon hearing the arguments on both sides, in this regard, it is worth to mention that the amended P.C. Act came into force only on 26.07.2018. The FIR has been registered by the CBI under Section 13(1)(e) read with Section 13(2) of P.C. Act in October 2020 and admittedly, the provisions of Section 13(1)(e) read with Section 13(2) of P.C. Act is removed from the statute. Therefore, the CBI could have registered the FIR under the amended P.C. Act, but there is a possibility of arguing the case by the 41 petitioner that the accused cannot be charged or tried under the new Act for the offences committed under the old Act. The amended Act is always in force and take effect from prospective in nature but not retrospective in nature. The Hon'ble Supreme Court in Tejmal Chowdary's case has held at paragraph No.7 as under:
"It is a cardinal principle of construction that every statute is prospective, unless it is expressly or by necessary implication made to have retrospective operation
37. Therefore, the amended P.C. Act will be in force only prospective in nature and it is not applicable to the case for the offence committed prior to the amendment of the Act. That apart, as per the Article 20 of the Constitution of India, a protection available to the accused persons for conviction of the offences. For the convenience, the Article 20(1) of Constitution of India is referred as under:
"20. Protection in respect of conviction for offences - 42 (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
38. In view of the provisions of Article 20(1) of Constitution of India for the offence alleged to have been committed by the petitioner is between April 2013 and the end of April 2018, at that time, the un-amended P.C. Act was in force.
39. As per Section 30(2) of the amended P.C. Act, in respect of Repeal and Saving will validate the action taken by the Authorities under the Repealed Act, if it is not inconsistent with the provisions of present Act. Therefore, even if any wrong provision mentioned in the FIR, that itself is not a ground for quashing the FIR when the matter was almost at the ending stage of the investigation. Therefore, the contention taken by the learned Senior 43 counsel for the petitioner for quashing the FIR on this ground that cannot be acceptable.
40. The learned Senior Counsel for the petitioner has strenuously contended that the CBI registered the case against the petitioner under Section 13(1)(e) of the P.C. Act by including the assets of his wife and children, which does not come under the purview of the public servant. The Assets and Liabilities of the wife and children cannot be considered as assets of the petitioner or a public servant. Therefore, the Assets and Liabilities of the family members, if, were removed, there is no disproportionate asset in the hands of the petitioner. The learned Senior Counsel would further contend that as per the contentions of the CBI in the FIR, the declaration of assets by the petitioner has including the assets of the family members at the time of election of the year 2013 was Rs.33,92,62,793/-. They added all the Assets and Liabilities of the family members, which cannot be included in the definition of the public servant. He further 44 contended that even there is no specification or individual name of the wife and children and their Assets and Liabilities mentioned in the FIR. It is not the case of the prosecution that the properties held by the wife and children are the benami properties of the petitioner. Therefore, it is contended that once there is no allegation of benami assets possessed by some other person, it cannot be included in the assets of the petitioner. He further contended that the assets of the family members including the income tallying with petitioner's account for registration of FIR, is not correct. He further contended that the ingredients of 13(1)(e) of P.C. Act is not attracted for registering the FIR against the petitioner. On the aforesaid ground, the learned Senior Counsel prayed for quashing the FIR.
41. On the other hand, the learned counsel for respondent has seriously objected the petition contending that the FIR registered by the police is based upon a source report by preliminary enquiry, and they have stated 45 that the public servant, i.e. the petitioner, is holding the assets including the assets of the family members, which is more than the income and assets declared in the year 2013 Assembly Election. On comparing the Assets and Liabilities declared by the petitioner in 2018 election during the check period from 01.04.2013 to 30.04.2018, it amounts to more than Rs.74 Crores excess than the known source of income. It is also contended that the FIR cannot contain the details of Assets and Liabilities of each family members and other persons. The FIR is not an encyclopedia containing all the minute details and it has to be considered only after investigating the matter while filing the final report.
42. The learned Counsel for the petitioner has strenuously contended that as per Section 13 of the P.C. Act, it is referring to the assets of public servant and not included any family member, as an unit. The learned Senior Counsel has contended that the definition of Section 13(1)(a) of the P.C. Act refers that the public servant 46 himself or any other person, on his behalf, is in possession, if it is not satisfactorily explained or accounted for it, is punishable under Section 13(2) of the P.C. Act.
43. Upon hearing both sides, it is worth to mention the definition of public servant under Section 2(c)(i) of P.C. Act, which reads as under:
"2(c)(i) Any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty.
44. Whereas, Section 13(1)(e), defines as under:
"13(1)(e) - A public servant is said to commit the offence of criminal misconduct, - if he or any person on his behalf, is in possession or has, at any time, during the period of his office, been in possession for which the public servant cannot be satisfactory account, of pecuniary resources or property disproportionate to his known sources of income.
45. On plain reading of the provisions of Sub-section (e) of Section 13(1), it includes he, (the public servant) himself and any person on his behalf. That means, though 47 the provision does not mention any person means whether it is the family member or any other person, but it does not expressly excluded the family members. Any person may be covered by family members or friends and relatives also. In this regard, the learned Senior Counsel for the respondent has relied upon the judgments of the Hon'ble Supreme Court reported in STATE OF KARNATAKA Vs. J.
JAYALALITHA & OTHERS reported in (2017) 6 SCC263 STATE OF CHATTISGARH AND ANOTHER Vs. AMAN KUMAR SINGH AND OTHERS reported in (2023) 6 SCC559and STATE OF HARYANA VS. BHAJANLAL reported in 1992 SUPP. (1) SCC335and STATE OF M.P. Vs. AWADH KISHORE GUPTA AND OTHERS reported in 2004(1) SCC691and VEERASWAMI Vs. UNION OF INDIA AND OTHERS reported in (1991) 3 SCC655 46. The Hon'ble Supreme Court in Jayalalitha's case, supra, held that 'it expanded notion of public servant to include within its sweep, not only public servants but also 48 those who abet and conspire with them'. In the said case, the public servant is not only included the Chief Minister of the State, but also the other person brought under the preview of Prevention of Corruption Act and the Hon'ble Supreme Court convicted the other persons than the public servant.
47. In the Aman Kumar Singh's case, supra, the Hon'ble Supreme Court at paragraphs 50, 53 and 55 included the family members along with the public servant for registering the case under the disproportionate assets case. Paragraph 50 of the said judgment reads as under:
50. Insofar as the merits of the controversy are concerned, we must necessarily begin with a reading of the relevant provisions of the PC Act. “Public servant” is defined in Section 2(c). It is not disputed that AS as well as YS is comprehended within such meaning. Section 13(1) of the PC Act defines “criminal misconduct”. A public servant is said to commit the offence of criminal misconduct if (a) he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do, or (b) he intentionally enriches himself illicitly during the period of his office. Thus, intentional 49 enrichment illicitly by a public servant during the period of his office is a criminal misconduct. There are two Explanations in Section 13(1). The First Explanation provides that a person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for. The other Explanation defines “known sources of income” to mean income received from any lawful sources. To attract this provision, the officer sought to be proceeded against must be a public servant. He must be found to be in possession of, by himself, or through any person on his behalf, at any time during the period of his office, pecuniary resources or property disproportionate to his known sources of income. If he is unable to satisfactorily account for the same, he shall be liable to be proceeded against for having committed criminal misconduct and suitably punished and fined if the charge is proved for such period, as provided in sub-section (2). Undoubtedly, this is a presumptive finding but that finding is based on three facts viz. being a (i) public servant, (ii) if at any time during the period of his office, he has been in possession, by himself or through any person on his behalf, of pecuniary resources or property disproportionate to his known sources of income, then (iii) he is enjoined to satisfactorily account for the same. The offence of criminal misconduct is committed by a public servant if (ii) is proved and (iii) does not happen. Therefore, if a prosecution is launched 50 under sub-section (1) of Section 13 of the PC Act and the allegation is proved at the trial, the public servant concerned is liable to punishment under sub-section (2) thereof.
48. The same view was taken by the Hon'ble Supreme Court in various cases referred above. Therefore, the contention of the petitioner's counsel that the meaning of public servant will not include the family members as one unit, cannot be acceptable. The matter is still under investigation and the possibility of including or naming the other persons in the charge sheet by the CBI, is not ruled out.
49. The learned Senior counsel for the petitioner also contended that while registering the FIR, there is no cognizable offence made out and there is no details of assets and liabilities, income or any benami transaction made in the FIR. Therefore, taking the entire amount as a whole of the public servant as one unit, cannot be acceptable. In this regard, on perusal of the FIR at column 12.4, it is mentioned that on the preliminary enquiry made 51 against D.K.Shivakumar, Anjaneya, Hanumanthaiah and Shashikumar, prima facie it revealed that the petitioner D.K. Shivakumar and his family members are in possession of assets disproportionate to their known sources of income during the period and Sri Anjaneya and Shashikumar aided him for the same. At column 12.5 of the FIR, it is also referred that the preliminary enquiry was made by the enquiry officer and as per the report, the petitioner D.K. Shivakumar and his dependent family members amazed the assets disproportionate to their known sources of income. At 12.5.1 of the FIR, the amount declared by the petitioner in the beginning of the check period and end of the check period is referred and the amounts were mentioned and the percentage of disproportionate assets is also mentioned. As already held above, the FIR is not an encyclopedia to mention the minute details in the first information. Therefore, for the purpose of taking investigation in a cognizable offence, the basic requirement is only whether there is any disproportionate assets with the accused than the known 52 sources of income as per preliminary enquiry made as per the guidelines issued by the Hon'ble Supreme Court in the case of LALITA KUMARI Vs. GOVT.OF U.P. reported in (2014) 2 SCC1 Therefore, merely the details of assets and income, expenditures of each and every individual, not mentioned in FIR, cannot be a ground for quashing the FIR. The investigation is under progress. As per the information submitted by the learned counsel for CBI, more than 80 witnesses have been examined and the voluminous documents produced by the petitioner have to be considered by the investigation officer. Then, it will be helpful for the CBI to file final report by showing the minute details. Therefore, on this ground, the FIR cannot be quashed. Even other wise, the name of the petitioner is mentioned in the FIR and the name of wife, dependent children or independent children is not named in the FIR, it is not necessary for naming all the persons in the FIR. After the detailed investigation, the police can name all the persons including their Assets and Liabilities and disproportionate assets. 53
50. The Hon'ble Supreme Court in the case of DINESHBHAI CHANDUBHAI PATEL Vs. STATE OF GUJARATH AND OTHERS reported in (2018)3 SCC104has held that the High Court would not appreciate the evidence or could draw its own inferences from the contents of the FIR and the material relied on, and the High Court go into the every minute details by exercising the power under section 482 of Cr.P.C. In another case in STATE OF TAMIL NADU Vs. S. MARTIN AND OTHERS reported in (2018)5 SCC718 the Hon'ble Supreme Court has held that when investigation is not yet completed, the High Court cannot go into verifying the amounts mentioned in the complaint and quash the FIR and the Court should allow the investigation to be completed. The Hon'ble Supreme Court in the case of CENTRAL BUREAU OF INVESTIGATION (CBI) AND ANOTHER Vs. THOMMANDRU HANNAH VIJAYALAKSHMI @ T.H. VIJAYALAKSHMI AND ANOTHER reported in 2021 SCC online SC923 at paragraph 44 of the judgment, by 54 relying upon the earlier its judgment in Niharika Infrastructure's case at paragraphs 12 and 15, has held as under:
44. In a more recent decision of a three Judge Bench of this Court in Neeharika Infrastructure (supra), Justice M R Shah, speaking for the Bench consisting also of one of us (Justice D Y Chandrachud), enunciated the following principles in relation to the Court exercising its jurisdiction under Article 226 of the Constitution or Section 482 of the CrPC: “80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV55of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences; iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non- interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction 56 on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self- restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 57 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or 58 under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.
51. At paragraph 51 of the said judgment, the Hon'ble Supreme Court has also has held that the High Court cannot sit as a chartered accountant while considering the offence punishable under Section 13(1)(e) of the PC Act while calculating the Assets and Liabilities declared by the petitioner in both elections at this stage 59 and set aside the order passed by the Telangana High Court for having quashed the FIR. Therefore, the contention of the learned Senior Counsel for the petitioner that there is no details of Assets and Liabilities of the family members and the FIR can be quashed, cannot be acceptable.
52. The learned Senior Counsel has also seriously contended that while registering the FIR at column 12.5.1, it is mentioned that the assets declared by the petitioner was Rs.33,92,62,793/- and during the end of the check period, it crossed Rs.163,53,44,494/- and the income was Rs.166,79,58,216/-, which is wrong. Whereas, the petitioner has declared his Assets and Liabilities before the Returning Officer, Election Commission of India, which is altogether different figure. The petitioner's counsel has also produced the copy of the affidavit filed along with nomination form No.26 during filing of the nomination in the year April 2013, which reveals that the petitioner filed form No.26 declaring the accounts, both movable and 60 immovable properties, stand in his name, his wife, dependent children in detail mentioning at different pages from Annexures 'A' to 'O'. Various details of properties, business, income liabilities, gold, silver, cash, etc. have also been mentioned. The learned counsel for the petitioner has also prepared a note mentioning the Assets and Liabilities during the election affidavit filed on 15.04.2013 as Rs.18,45,30,706/- and he has also shown Rs.48,58,21,940/- as on 23.04.2018, while filing the nomination during election 2018. But the learned Senior Counsel has not mentioned as to what was the income and the other details in the calculation memo. It contains only assets i.e., movable and immovable and liabilities. Therefore, these amounts cannot be taken into consideration to show that the amount mentioned by the CBI in the FIR at Rs.33,96,62,783/- is not correct. The details of the Assets and Liabilities were said to be produced by the petitioner by documents to the investigation officer and the investigation is under progress. Therefore, the contention of the learned Senior 61 Counsel that the amount declared by the petitioner in the year 2013 election is incorrect, cannot be acceptable at this stage, without filing the final report by the investigation officer. It is well settled by the Hon'ble Supreme Court that this Court cannot conduct a mini trial while considering the petition under Section 482 of Cr.P.C. for the purpose of quashing the criminal proceedings. Apart from that, this Court cannot sit as an chartered accountant/auditor in calculating the amounts declared by the petitioner in the previous nomination paper filed in the year 2013 and the subsequent nomination paper filed in the year 2018. It is possible to verify only after the final report filed by the police. In the case of Awadh Kishore Gupta's case, supra, at paragraph 13 of the said judgment, the Hon'ble Supreme Court has held as under:
13. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge. Even when charge is framed at that stage, the Court has to only prima facie be 62 satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan v. Jawahar Lal [(1992) 3 SCC317:
1992. SCC (Cri) 636]. it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. When the factual position of the case at hand is considered in the light of principles of law highlighted, the inevitable conclusion is that the High Court was not justified in quashing the investigation and proceedings in the connected case (Crime No.116 of 1994) registered by the Special Police Establishment, Lokayukta, Gwalior. We set aside the impugned judgment. The State shall be at liberty to proceed in the matter further.
53. Therefore, in view of the judgment of Hon'ble Supreme Court in Thommandru's case and Awadh Kishore Gupta's case, cited supra, the FIR cannot be quashed on the ground that there were no details in the FIR regarding the Assets and Liabilities of the family 63 members and any other persons. Hence, on this ground urged by the learned Senior Counsel, the FIR cannot be quashed in this case.
54. Learned counsel for the CBI also produced some details of the Assets and Liabilities said to be declared by the petitioner and some of the properties were not declared in the affidavit regarding holding properties related to global mall for Rs.7.80 crores other assets at Kanakapura town, Benny stone garden , construction of the house at Sadashivanagara and contended that property in possession of wife of the petitioner regarding immovable assets worth Rs.17,33,85,643/- and movable Rs.2,77,04,752/- and on end of the check period it was Rs.43,12,79,497/- and 10 movable assets of Rs.3.2 crores. The dependent children are having immovable Rs.61,75 crores movable 25.90 crores in the beginning of the check period and at the end it was Rs.75.01 crores and Rs.3.17 crores etc., but I have stated above this court cannot verify the Assets and Liabilities declared prior the check 64 period and after the check period while considering the quashing the FIR. That has to be considered only after filing the final report by the Investigating Officer and this court cannot sit as chartered account or auditor in appreciating the evidence regarding the values and documents at this stage of investigation. Therefore, on this ground, the FIR cannot be quashed.
55. The learned Senior Counsel for the petitioner also contended the FIR has been registered in October, 2020 but till February 2023, the CBI not completed the investigation and investigation is still pending until this court stayed the further investigation. Therefore it is contended, there was delay in conducting investigation for more than 2.5 years hence FIR shall be quashed. On the other hand the respondent counsel has contended the petitioner produced voluminous documents during the investigation and those documents were still under consideration and there is no delay in investigating the matter on the part of the respondent. The crores of 65 properties are held by the petitioner, including both immovable and movables and maximum investigation has been completed, more than 84 witnesses have been examined. Therefore, the CBI is likely to file charge sheet within short period, therefore, on that ground the FIR cannot be quashed, hence prayed for dismissing the petition.
56. On perusal of the synopsis produced by the learned counsel for the respondent/CBI, which reveals, while registering the FIR there was Covid-19 lockdown and the investigation were stopped by the Investigating Officer and subsequently the investigation has taken place, there were 70 immovable properties and 30 movable assets in addition to 47 instances of income and 125 instances of expenditure and there were several suspicious cash transactions has been traced. The petitioner has submitted explanation in the form of 1 to 6 statements containing 11 volumes of around 2412 pages and total 596 documents collected and 84 witnesses have been 66 examined by the CBI. Due to non availability of the documents, the Investigating Officer was unable to complete the investigation and file the charge sheet. On considering the above submission made by the learned counsel for the respondent, the Hon'ble Supreme Court has held in the case of Londhe Prakash Bhagwan Vs Dattatreya Eknath Mane reported in (2013) 10 SCC627wherein at para 9, of the judgment the Hon'ble Supreme Court has held, there is no time limit prescribed in the statute regarding limitation and aggrieved person shall approach the court within a reasonable time. Learned counsel for the respondent also contended, that the FIR has been registered in October 2020, but upto 2022 the petitioner has not approached the court for quashing the FIR and he has approached the court almost nearly end of the investigation and most of the investigation has been completed, therefore FIR cannot be quashed. In the above said case Hon'ble Supreme Court has held, even though there is no limitation but the parties shall approach the court within reasonable time. 67
57. The Delhi High Court in Vipin Kumar Gupta Vs Sarvesh Mahajan's case, also taken view that the party shall approach the court within reasonable time. Therefore, once the maximum investigation has been completed and the petitioner himself offered explanation by producing voluminous documents, now the petitioner cannot take a shelter on the ground of delay in investigating the matter. Hence contention of the learned counsel for petitioner that the FIR should be quashed on the ground of delay cannot be acceptable.
58. It is also pertinent to note, on the direction issued by this court, the Investigating Officer has produced the investigation status of the case, along with the case dairy and preliminary enquiry reports. On verifying all these documents, the prosecution almost examined maximum witnesses and collected voluminous documents and evidences from various sources. Since the investigation is under progress, and FIR has been 68 challenged, the court cannot mention every details produced by the Investigating Officer under the sealed cover, it cannot disclose in the Order and the petitioner also cannot be made known to these documents until final report is filed, where the petitioner is entitled for the copy of the final report.
59. The status report of the investigation also reveals the documents produced by the petitioner has been under scrutiny, there was huge cash transactions which took place and some other suspicious transaction were held by the petitioner. There were 98 bank accounts pertaining to the petitioner and his family has been under scrutiny. The CBI has taken assistance of chartered accountant to analyze the transactions. On perusal of these documents, which reveals the investigation is almost in final stage and in view of the production of voluminous documents by the petitioner the Investigating Officer is unable to conclude the investigation within a short period. Therefore, the contention of the learned counsel for the 69 petitioner that there was delay in concluding the investigation cannot be acceptable and on that ground the FIR cannot be quashed.
60. Another contention raised by the learned counsel for petitioner, mainly on the ground and important ground urged by the petitioner is that the FIR registered against the petitioner with malafide and political malice. The learned senior counsel for the petitioner has seriously contended that petitioner is sitting MLA and former Minister at the time of registering the FIR and he was actively participated in the National Congress Party and is popular political figure in Karnataka, therefore as a vengeance the Central Government having control over the Income Tax, ED and CBI has targeted the petitioner by registering false cases against him, therefore, the FIR requires to be quashed. On the other hand, the respondent counsel seriously objected the same and contended the petitioner is involved in amassing the assets during the check period which is more than known source 70 of income and there is no malafide and political malice in registering the FIR and contended that the Hon'ble Supreme Court has held in the case of State of Chathishgarh Vs Aman Kumar Sing case and Monica Kumar Sing Vs State of Uttar Pradesh and Bhajanlal's case and prayed for dismissing the petition.
61. Based upon the rival contention and perusal of the records, which is an admitted fact, that the petitioner is sitting MLA of Karnataka Assembly and he was former Minister during the check period 2013-2018 Assembly and presently he is holding post of Deputy Chief Minister of Karnataka. It is also an admitted fact, the Income Tax conducted raid in the house of the petitioner and others on various places, they collected documents and seized more then Rs.8 crores of amount, and also Rs.41 lakh in the house. the Income tax authorities after issuance of notice they have filed 4 complaints before the special court under section 276 (c) (1) of Income Tax Act and Section 201 and 204 of IPC, out of which in some of the cases the 71 Magistrate quashed the criminal proceedings and now the cases are pending before the Hon'ble Supreme Court and in one case, the discharge application came to be dismissed, revision also dismissed and the SLP is pending before the Hon'ble Supreme Court. It is also revealed from the documents based upon the Income Tax Report the Enforcement Directorate registered FIR in ECIR No.4/HIU/2018 for the offence punishable under Section 3 and 4 of Prevention of Money Laundering Act, where the petitioner has been arrested. He was in custody for some time, then released on bail and the proceeding is still under process.
62. It is also revealed from the documents that based upon the report, sent by the Directorate of Enforcement under Section 66(2) of PMLA Act, to the State Government where prosecution against the petitioner under the PC Act, on the ground, during the investigation of the Income Tax Authorities, it was found the petitioner was involved in money laundering activities and a case was 72 registered under the PMLA Act. During the investigation by the Enforcement Directorate, it was found the petitioner has amassed assets disproportionate to the known source of income, hence letter has been sent to the Chief Secretary, Government of Karnataka. Accordingly, the State Government accorded consent for prosecuting against this petitioner on 25.9.2019 for the offences punishable under Section 13(1)(3) and 13(2) of the PC act in RC No.10A/2020 on 3.10.2020. During the intervening period of granting permission for registering FIR and till registering FIR for almost one year there was preliminary enquiry made by the CBI and collected the materials. Thereafter, FIR came to be registered which is under challenge.
63. The Hon'ble Supreme Court has held, in Aman Kumar Sing and others case reported in 2023 SCC Online SC198at paragraph 71,72,73 and 74 as under:-
71. We have perused the writ petitions filed by AS and YS and have no hesitation to agree with Mr.Hegde that the pleadings are insufficient to return a finding that the FIR is 73 an outcome of mala fide. No doubt, certain allegations are levelled against the Government and the Chief Minister; however, such allegations are vague and general in nature. Mala fide motives are required to be affirmatively pleaded and proved. However, no foundation in that behalf has been laid and naturally so, the High Court even did not examine whether exception could have been taken to the FIR on the ground of mala fide.
72. Secondly, neither the head of the political executive (the incumbent Chief Minister) nor that of the administrative executive (the Chief Secretary) was personally arrayed as a party to any of the proceedings. Now, law is well settled that the person against whom mala fide or bias is imputed should be impleaded as a party respondent to the proceedings eo nominee and that in his/her absence no inquiry into the allegations can be made. This is what the decision in State of Bihar v. P.P. Sharma [State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC222:
1992. SCC (Cri) 192]. lays down. Having regard thereto, since the incumbent holding the office of Chief Minister of the State against whom mala fide is alleged is not on record, we are loath to attach any importance to the allegations of mala fide even if there be any.
73. Thirdly, it must be remembered that when an information is lodged at the police station and an offence is registered in respect of a disproportionate assets case, it is the material collected during the investigation and evidence led in court that is decisive for determining the fate of the accused. To our mind, whether the 74 first information report is the outcome of mala fides would be of secondary importance. In such a case, should the allegations of mala fides be of some prima facie worth, would pale into insignificance if sufficient materials are gathered for sending the accused up for a trial; hence, the plea of mala fide may not per se form the basis for quashing the first information report/complaint.
74. Finally, following the above, what is of substantial importance is that if criminal prosecution is based upon adequate evidence and the same is otherwise justifiable, it does not become vitiated on account of significant political overtones and mala fide motives. xxxxxxxxxNeedless to observe, the first information report in a disproportionate assets case must, as of necessity, prima facie, contain ingredients for the perception that there is fair enough reason to suspect commission of a cognizable offence relating to “criminal misconduct” punishable under the PC Act and to embark upon an investigation. xxxxxxxxxxxWe quite appreciate that there could be cases of innocent public servants being entangled in investigations arising out of motivated complaints and the consequent mental agony, emotional pain and social stigma that they would have to encounter in the process, but this small price has to be paid if there is to be a society governed by the rule of law. While we do not intend to fetter the high courts from intervening in appropriate cases, it is only just and proper to remind the courts to be careful, circumspect and cautious in quashing first information reports resting on mala fide of the nature alleged herein 75 64. In view of the latest judgment of the Hon'ble Supreme Court, the contention of the learned senior counsel for petitioner is that the FIR has been registered with malafide and political malice cannot be acceptable for the reason that there is various documents and evidence collected by the 3 prosecuting agencies, Income tax Authorities, ED and CBI. At this stage, it cannot be said, the FIR cannot be considered as malafide or political malice, Therefore, on that ground, the contention of the petitioner cannot be acceptable for quashing the FIR.
65. Another contention raised by the learned senior counsel for the petitioner that the preliminary enquiry made by the CBI and there is a violation of guidelines and delay in conducing enquiry, the FIR shall be quashed.
66. In this regard, learned counsel for respondent has contended, the CBI manual is only a guidelines for the Investigating Officer that is not a statute, it is only for assisting the Investigating Officer for investigating the 76 matter or conducting preliminary enquiry. Therefore, that cannot be a ground for quashing the FIR. In support of his case, relied upon the judgment of CBI Vs Thommandru Hanna Vijayalakshmi's case (stated supra), at para 17, 18, 20, 22 held as under:-
17. The most authoritative pronouncement of law emerges from the decision of a Constitution Bench in Lalita Kumari (supra). The issue before the Court was whether “a police officer is bound to register a first information report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure 1973…or the police officer has the power to conduct a ‘preliminary inquiry’ in order to test the veracity of such information before registering the same”. Answering this question on behalf of the Bench, Chief Justice P Sathasivam held that under Section 154 of the Code of Criminal Procedure 197355, a police officer need not conduct a preliminary enquiry and must register an FIR when the information received discloses the commission of a cognizable offence. Specifically with reference to the provisions of the CBI Manual, the decision noted: “89. Besides, the learned Senior Counsel relied on the special procedures prescribed under the CBI Manual to be read into Section 154. It is true that the concept of “preliminary inquiry” is contained in Chapter IX of the Crime Manual of CBI. However, this Crime 77 Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that CBI is constituted under a special Act namely, the Delhi Special Police Establishment Act, 1946 and it derives its power to investigate from this Act.
18. However, the Court was also cognizant of the possible misuse of the powers under criminal law resulting in the registration of frivolous FIRs. Hence, it formulated “exceptions” to the general rule that an FIR must be registered immediately upon the receipt of information disclosing the commission of a cognizable offence. The Constitution Bench held: “115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time… […].
117. In the context of offences relating to corruption, this Court in P. 78 Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC595:
1970. SCC (Cri) 240]. expressed the need for a preliminary inquiry before proceeding against public servants. […].
119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to 79 prosecute the complainant for filing a false FIR.
20. The Constitution Bench thus held that a Preliminary Enquiry is not mandatory when the information received discloses the commission of a cognizable offence. Even when it is conducted, the scope of a Preliminary Enquiry is not to ascertain the veracity of the information, but only whether it reveals the commission of a cognizable offence. The need for a Preliminary Enquiry will depend on the facts and circumstances of each case. As an illustration, “corruption cases” fall in that category of cases where a Preliminary Enquiry “may be made”. The use of the expression “may be made” goes to emphasize that holding a preliminary enquiry is not mandatory. Dwelling on the CBI Manual, the Constitution Bench held that : (i) it is not a statute enacted by the legislature; and (ii) it is a compendium of administrative orders for the internal guidance of the CBI.
22. The decision of a two Judge Bench in Managipet (supra) thereafter has noted that while the decision in Lalita Kumari (supra) held thats a Preliminary Enquiry was desirable in cases of alleged corruption, that does not vest a right in the accused to demand a Preliminary Enquiry. Whether a Preliminary Enquiry is required or not will depends on the facts and circumstances of each case, and it cannot be said to be mandatory requirement without which a case cannot be registered against the 80 accused in corruption cases. Justice Hemant Gupta held thus: “28. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC1: (2014) 1 SCC (Cri) 524]., the Court has laid down the cases in which a preliminary inquiry is warranted, more so, to avoid an abuse of the process of law rather than vesting any right in favour of an accused. Herein, the argument made was that if a police officer is doubtful about the veracity of an accusation, he has to conduct a preliminary inquiry and that in certain appropriate cases, it would be proper for such officer, on the receipt of a complaint of a cognizable offence, to satisfy himself that prima facie, the allegations levelled against the accused in the complaint are credible… 29. The Court concluded that the registration of an FIR is mandatory under Section 154 of the Code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation… 30. It must be pointed out that this Court has not held that a preliminary inquiry is a must in all cases. A preliminary enquiry may be conducted pertaining to matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, etc. The judgment of this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC1: (2014) 1 SCC81(Cri) 524]. does not state that proceedings cannot be initiated against an accused without conducting a preliminary inquiry. […]. 32…The scope and ambit of a preliminary inquiry being necessary before lodging an FIR would depend upon the facts of each case. There is no set format or manner in which a preliminary inquiry is to be conducted. The objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. That is the test laid down in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC1: (2014) 1 SCC (Cri) 524]..
33. In the present case, the FIR itself shows that the information collected is in respect of disproportionate assets of the accused officer. The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Herein, relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable offence. Therefore, once the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can 82 only be done if upon a reading of the entirety of an FIR, no offence is disclosed. Reference in this regard, is made to a judgment of this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC335:
1992. SCC (Cri) 426]. wherein, this Court held inter alia that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused and also where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
34. Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC1: (2014) 1 SCC (Cri) 524]. is not required to be mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient.” 83 67. In view of the principle laid by the Hon'ble Supreme Court in the case supra, the contention raised by the learned counsel for petitioner that the preliminary enquiry contained in the CBI manual, not followed by the CBI, cannot be acceptable. It is categorically held by Hon'ble Supreme Court at paragraph 20 that the CBI manual is not a statute enacted by the legislature it is only compendium of administrative orders for the internal guidance of the CBI. Therefore, the contention of the learned counsel for the petitioner cannot be acceptable.
68. Another contention raised by the learned counsel is that there is no source report for registering the FIR. Therefore, the amount arrived by the Investigating Officer for registering the case under the P.C. Act is not sustainable etc., On the other hand the respondent counsel has contended the FIR has been registered not only on the preliminary enquiry made by the CBI officer but also the records, collected by the Income tax 84 authorities while in raid. The Enforcement Directorate collected documents during the investigation in their cases has been shared with the CBI for registering the FIR. On perusal of the case diary produced by the CBI which reveals the preliminary enquiry has been conducted by the CBI officer and submitted the report. It is also pertinent to note, this is not the case where the CBI directly registered the FIR based upon the source report but the FIR has been registered on the report sent by the Enforcement Directorate to the State Government for prosecuting against the petitioner based upon the income tax raid and income tax proceedings. Therefore, the FIR has been registered based upon the documents collected by the Income Tax, Enforcement Directorate and the CBI, under preliminary enquiry. Therefore, at this stage of investigation the court cannot jump into any conclusion that the investigation taken up on the preliminary enquiry cannot be said to be incorrect. 85
69. Upon going through the provisions of Sub- Section(e) to Section 13(1) of P.C. Act, where the public servant, by himself or any person on his behalf, he is in possession are as any time during the period of his office, being in possession for which the public servant cannot satisfactorily account, of pecuniary sources for property disproportionate to his known source of income, then it is punishable under Section 13(2) of the P.C. Act. The petitioner after registering the FIR on the show cause notice issued by the Investigating Officer, he has submitted voluminous documents along with the affidavits for explaining the assets in his possession and also by his family members. The explanation offered by the petitioner is required to be considered by the Investigating Officer during the investigation. Therefore, the documents produced by the petitioner including the property title deeds , list of movables, affidavits, income tax returns, or any documents that has to be considered only by the Investigating Officer during the investigation and this Court cannot sit and verify to find out whether the 86 explanation given by him satisfactorily or not while exercising power under Section 482 of Cr.P.C. otherwise it will become conducting a mini trial and appreciation of documents before filing the challan. Once challan is filed then the Trial Court also have a chance to look into the veracity of the allegation made in the charge sheet regarding calculations of assets, liabilities, income and expenditures before framing of charge by exercising the power under Sections 239/227 of Cr.P.C. and even this Court also verify the allegation made in the charge sheet while considering under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C. That verification of the documents and appreciation of documents cannot be exercised while dealing with the criminal case under Section 482 of Cr.P.C.
70. Though learned counsel for the petitioner relied upon various judgments of Hon'ble Supreme Court the learned counsel for respondent also relied upon various judgment of Hon'ble Supreme Court. in support of their 87 arguments .but as stated above the scope under Section 482 of Cr.P.C. for quashing the FIR is very limited and the Court cannot go into the merits of the case, by appreciating the evidence on record, statement of the witnesses and the amounts calculated by the Investigating Officer, regarding Assets and Liabilities. In order to come to the conclusion, there is no case made out against the accused. On the other hand, it amounts to conducting mini trial and to work as a chartered accountant, in order to auditing the amounts or figures mentioned by the Investigating Officer and the petitioner. The scope of section 482 Cr.P.C., is there must be no prima facie material for taking cognizance and proceed with the investigation and it should be fallen under the categories of rarest of the rare case. But here in this case, the investigation officer examined so many witnesses, collected voluminous documents, more than 84 witnesses and almost ending stage of investigation the FIR cannot be quashed at this stage. 88
71. Though the learned Senior counsels for the petitioner were contended that there cannot be two parallel proceedings for the same set of offence, both under PML Act registered by the ED and CBI for the P.C. Act, but, it is well settled by the Hon'ble Supreme Court that the proceedings before the ED is altogether different from the offences alleged to have been committed under the P.C. Act, whereas the ED proceedings for Money Laundering case and proceeding initiated by the Income Tax Authorities are pertaining to the tax evasions. Therefore, it cannot be said for the same offence, parallel proceedings initiated by three different agencies and hence, the contention of the petitioner counsels cannot be acceptable.
72. Therefore, by considering all the above said findings, the final conclusions are: (i) There is an inordinate delay and latches on the part of the petitioner in approaching the Court for quashing the 89 FIR, since most of the investigation has been concluded by the CBI and the petitioner himself offered his explanations by producing voluminous documents to the Investigating Officer which is under verification of the Investigating Officer; (ii) During the investigation stage, the Court cannot appreciate the documents or evidences or materials without conclusion of the investigation and prior to submitting the final report which amounts to conducting a mini trial for quashing the FIR; (iii) If any delay in investigation on the part of the CBI, a direction can be issued for concluding the investigation by fixing the time limit; (iv) The Investigating Officer can be considered the documents and explanations offered by the petitioner, he may accept the same and he may also file 'B' Final report after the investigation 90 or else the Investigating Officer can file the charge sheet under Section 173(2) of Cr.P.C; (v) If the charge sheet is filed and if the petitioner aggrieved with the opinion of Investigating Officer, he is at liberty to approach the Court either under Sections 227/239 or 482 of Cr.P.C. for discharge or quashing the charge sheet; For the above said reasons, I proceed to pass the following order: Writ petition filed by the petitioner under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C. is hereby dismissed. The CBI is hereby directed to complete the investigation and file the final report within three months from Pthe date of receipt of the copy of this order. 91 Interim stay granted by this Court is hereby vacated. Pending I.As., if any, is hereby dismissed as it does not survive for consideration. Sd/- JUDGE AKV/GBB/CS