| Headnote |
J&K Prevention of Corruption Act, 2006: s.3, second proviso, s.5(1)(d) r/w 5(2) – Authorisation by Senior Superintendent of Police to the inspector to enquire into the FIR for the offences under ss.5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and s.120-B of the Ranbir Penal Code, legality of – Requirement to give reasons in the authorisation – Held: It cannot be said that there was non- application of mind on the part of the Senior Superintendent of Police authorising the inspector to enquire into the FIR for the stated offences – The inspector who was authorised to investigate the FIR for the said offences was also authorised to arrest the accused persons whenever and wherever necessary – In the said authorisation, it was specifically mentioned that he will conduct the investigation of the case under the supervision of the Superintendent of Police – Therefore, all precautions were taken by the Senior Superintendent of Police authorising the Inspector to investigate the FIR – Even otherwise, a plain reading of the second proviso to s.3 shows that 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 nor there is 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 above authorisation, it cannot be said that such authorisation authorising inspector to investigate the FIR 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 – Ranbir Penal Code – s.120-B.J&K Prevention of Corruption Act, 2006: s.155 – Non- compliance of – By impugned order, High Court observed that for an investigating agency to investigate the group of offences which include the non-cognizable one, it must obtain a sanction from the concerned Magistrate before launching the investigation and in the instant case no such sanction from the concerned Magistrate was obtained – Propriety – Held: The substantive offences against the respondent were under J&K PC Act, 2006 and as per s.3 of the Act, all offences under the Act are cognizable and non-bailable – As such, the said issue is squarely covered against the respondent in view of the decision of this Court in the case of Pravin Chandra Mody wherein it was held that where the information discloses a cognizable as well as a non-cognizable offence, the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts and he can include that non- cognizable offence in the charge-sheet which he presents for a cognizable offence – The offence under the Prevention of Corruption Act is a substantive offence and the investigation 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 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 – Therefore, the High Court erred in quashing the criminal proceedings on the ground that the offence under s.120B is a non-cognizable, prior sanction as required under s.155 of J&K Cr.P.C. is not obtained.Vigilance Manual, 2008: Rule 3.16 – Validity of – A close reading of Rule 3.16 showed that the same 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 – As per Clause 3.16 only after the Preliminary Enquiry is conducted and there is a prima facie case found, an FIR is required to be registered – Considering the nature of offences, a detailed enquiry is required and therefore it is observed in Clause 3.16 that a PE should be completed normally within a period of six months – As per the law laid down in the case of Lalita Kumari, a detailed investigation into the allegations on merits is not required by holding Preliminary Enquiry and that such enquiry is to be completed within a period of seven days, however, it is not held that if the Preliminary Enquiry is not completed within a period of seven days, the entire criminal proceedings would be void and the same are to be quashed – Rule 3.16 can be said to be in consonance with the observations and the law laid down by this Court in the case of Lalita Kumari. Vigilance Manual, 2008: Rule 3.16 – 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 – 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 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 – There shall not be any prejudice caused to the accused at the stage of holding Preliminary Enquiry which 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 – Therefore, the High Court has materially erred in holding and declaring Clause 3.16 as ultra vires. Liability: Vicariously liability of respondent in the absence of main conspirators – Allegations against the respondent are in respect of his individual capacity – Therefore, there is no question of any vicarious liability. |
