A Supreme Court Bench consisting Justice MR Shah and Justice AS Bopanna has set aside a judgment of the High Court of Jammu & Kashmir declaring Rule/Clause 3.16 of the Vigilance Manual, 2008 dealing with Preliminary Enquiry (PE) as ultra vires.
The Bench has held that whatever enquiry is conducted at the stage of Preliminary Enquiry, by no stretch of imagination, will be considered as investigation under the code of criminal procedure which can only be after registration of the FIR.
"Even otherwise, merely because while holding a Preliminary Enquiry a detailed enquiry is made into the allegations made against the respondent which, as observed hereinabove, can be said to be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR and merely because some more time is taken in conducting the Preliminary Enquiry before registering the FIR, the entire criminal proceedings cannot be quashed." The Court held.
In this case, an FIR was registered against the respondent under Section 5(1)(d) r/w 5(2) of the J&K Prevention of Corruption Act, 2006 and Section 120B of the Ranbir Penal Code alleging that during 2010- 11, the Director Health Services, Kashmir along with the other accused persons misappropriated a huge amount of government money by way of effecting purchases of sub-standard medical kits under National Rural Health Mission (NRHM) at highly exorbitant rates and in violation of the conditions of supply orders placed by the department. The High Court had quashed the FIR on the following grounds:-
(1) There is a non-compliance of the mandatory provision under Section 3 of the J&K PC Act, 2006 inasmuch as no special and separate reasoned order was passed by the authorising officer while conferring authority on a non-designated officer as per second proviso to Section 3;
(2) prior sanction of the Magistrate for the offence under Section 120B as required under Section 155 of the J&K Cr.P.C. was not obtained;
(3) there was a delay in conducting the preliminary verification and by holding the preliminary verification the authority entered into the domain of investigation which is not permissible as held by this Court in the case of Lalita Kumari;
(4) the allegations made in the FIR even if accepted to be true in its entirety are legally not tenable.
Thus, the state government challenged the judgment before the Supreme Court. The Supreme Court set aside the judgment.
Regarding non-compliance of mandatory provision under Section 3 of J & K PC Act, 2006, the Bench observed that on a plain reading of the second proviso to Section 3, only two requirements are required to be satisfied, namely,
(i) authorisation in writing by an officer of the Vigilance Organisation not below the rank of Assistant Superintendent of Police to an officer of not below the rank of Sub-Inspector of Police to investigate such offences; and
(ii) such officer authorised may investigate the offences so specified in the order of authorisation.
"Therefore, as such, there is no requirement of giving either special reasons or there is no requirement to mention reasons. What is required to be considered is whether there is an application of mind with respect to offences and the relevant provisions with respect to authorisation. Considering the authorisation reproduced hereinabove, it cannot be said that such authorisation authorising Inspector Nisar Hussain to investigate the FIR for the offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and 120B of the RPC can be said to be vitiated and/or can be said to be void which warrants quashing of the entire criminal proceedings including the FIR.", the Court held.
The Bench held that prior permission of the Magistrate is not required as the same would lead to considerable delay and can hamper the investigation. The offence under the Prevention of Corruption Act is a substantive offence and when the investigation is in respect of the offence under the PC Act, when considered and coupled with the offence of conspiracy, there is no requirement of prior sanction of the Magistrate.
"Merely because the offence of the conspiracy may be involved, investigation into the substantive offence, i.e., in the present case, offence under the PC Act which is cognizable is not required to await a sanction from the Magistrate, as that would lead to a considerable delay and affect the investigation and it will derail the investigation.", the Bench held.
On the issue of delay in conducting preliminary verification, the Bench held that it can be said to be in the interest of the accused and/or a person against whom the allegations are made and to safeguard the accused against frivolous complaints.
The Bench didn't entertain a submission that as per the law laid down by this Court in the case of Lalita Kumari v. Government of Uttar Pradesh, a detailed investigation into the allegations on merits is not required to be done by holding Preliminary Enquiry and that such enquiry is to be completed within a period of 7 days.
"It is to be noted that in the case of Lalita Kumari (supra), it is not held that if the Preliminary Enquiry is not completed within a period of 7 days, the entire criminal proceedings would be void and the same are to be quashed."
The respondent-accused submitted that in the present case, by conducting a Preliminary Enquiry, detailed investigation has been made and only thereafter the FIR is registered and that at the time of Preliminary Enquiry, investigation is not permissible. The Bench repelled this argument, holding thus:-
"The aforesaid submission seems to be attractive but has no substance. While holding a Preliminary Enquiry under Clause 3.16 (of the Vigilance Manual, 2008), whatever is conducted will be in the form of enquiry into the allegations to consider whether any prima facie case is made out or not which requires further investigation after registering the FIR or not. While considering the prima facie case for the purpose of registering the FIR, some enquiry/investigation is bound to be there, however, the same shall be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR only."
The Bench further stated the High Court has materially erred in holding and declaring Clause 3.16 of the Vigilance Manual as ultra vires.
"There shall not be any prejudice caused to the accused at the stage of holding Preliminary Enquiry which as observed hereinabove shall only be for the purpose of satisfying whether any prima facie case is made out with respect to the allegations made in the complaint which requires further investigation after registering the FIR or not."
On the argument that the respondent cannot be held vicariously liable in the absence of main conspirators – Private Limited Companies and/or their in-charge persons, the Bench ruled that the allegations against the respondent are against him in his individual capacity. Besides, the Directors of the Private Limited Companies, respondent no.1 and other officials have been arrayed as an accused.
The Bench held that, "Therefore, there is no question of any vicarious liability and the observations made by the High Court that in absence of main conspirators – Private Limited Companies and/or their in-charge persons, respondent no.1 cannot be held liable is unsustainable and cannot be accepted."