PC Act - More Time Taken For Preliminary Enquiry Not A Ground To Quash Criminal Proceedings : Supreme Court

The Supreme Court has observed that whatever enquiry is conducted at the stage of Preliminary Enquiry, by no stretch of imagination, can be considered as investigation under the code of criminal procedure which can only be after registration of the FIR. The Court also observed that merely because some time is taken for conducting preliminary enquiry, that cannot be a ground to quash the criminal proceedings for an offence under the Prevention of Corruption Act.The bench of Justices MR Shah and AS Bopanna was considering an appeal against the High Court's judgement in which the Court in exercise of its extraordinary jurisdiction quashed the criminal proceedings and declared Rule 3.16 of the Vigilance Manual, 2008 dealing with the Preliminary Enquiry (PE) as ultra vires,being in direct conflict with the Top Court's judgement in Lalita Kumari v. Government of Uttar Pradesh.Terming that High Court's observation with regards to Rule 3.16 as erroneous, the bench in The State of Jammu and Kashmir v Dr Saleem ur Rehman observed that, "While holding a Preliminary Enquiry under Clause 3.16, 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. 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. 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. Therefore, the High Court has materially erred in holding and declaring Clause 3.16 as ultra vires"Factual BackgroundAn FIR was registered u/s 5(1)(d) r/w 5(2) of the J&K Prevention of Corruption Act, 2006 ('J&K PC Act, 2006') and Section 120B of the Ranbir Penal Code ('RPC') against Dr Saleem ur Rehman ("respondent") alleging that during 2010-11, the Director Health Services, Kashmir along with the other accused persons misappropriated the 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.Aggrieved, the respondent approached the High Court seeking quashing of criminal proceedings. Reliance was placed on the judgements in State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335 and Lalita Kumari v. Government of Uttar Pradesh AIR 2014 SC 187.Case Before High CourtThe High Court while quashing the criminal proceedings made the following observations on the questions raised by the respondent:(1) there was 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 was not permissible as held by this Court in the case of Lalita Kumari (supra); and(4) the allegations made in the FIR even if accepted to be true in its entirety were legally not tenable.Aggrieved, the State approached the Top CourtSubmissions Of Counsel(s)Submissions On State's Behalf Senior Advocate R. Venkataramani submitted that the requirement of giving reasons for the authorisation referred to in the second proviso to Section 3 is misconceived. To substantiate his contention, senior counsel submitted that the proviso itself did not contemplate the giving of reasons for the authorisation of power to investigate and secondly, the power to authorise being purely administrative based on expediency and public policy, no reasons were...

PC Act - More Time Taken For Preliminary Enquiry Not A Ground To Quash Criminal Proceedings : Supreme Court

Shruti Kakkar

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