1. Heard Mr. P.N. Shahi, learned senior counsel assisted by Mr. Shekhar Singh, learned counsel for the petitioner, Mr. Rana Vikram Singh, learned
counsel for the Special Vigilance Unit (SVU), Bihar and Mr. Prabhu Narayan Sharma, learned AC to AG for the State.
2. The present writ application has been filed for the following reliefs:-
“i. For quashing the F.I.R. of Special Vigilance Unit, Patna Case No.17 of 2022 dated 07.12.2022 (Special Case No.80 of 2022 pending in the
court of learned Special Judge, Vigilance, Patna) under sections 13(1)(b) read with 13(2) read with Section 12 of the Prevention of Corruption Act,
1988 and Sections 120(B) and 168 of the Indian Penal Code in the facts and circumstances of the case.
ii. For quashing and setting aside the investigation being done by the respondent authorities in relation to the aforesaid F.I.R. of Special Vigilance Unit,
Patna Case No.17 of 2022 dated 07.12.2022 (Special Case No.80 of 2022) which is illegal, erroneous and malafidely instituted.
iii. For any other relief/reliefs for which the petitioner is entitled.â€
Brief facts of the case
3. Petitioner in this case is an Officer of the Indian Police Service 1998 batch, Bihar Cadre. He is presently posted as Inspector General, State Crime
Records Bureau, Bihar, Patna.
4. A First Information Report has been lodged giving rise to SVU, Patna P.S. Case No.17 of 2022 for the offences alleged under Sections 13(1)(B)
r/w 13(2) r/w 12 of the Prevention of Corruption Act, 1988 (as amended 2018) and 120(B) and 168 of the Indian Penal Code which has been
registered as Special Case No.80 of 2022 pending in the court of learned Special Judge, Vigilance, Patna. Petitioner is facing investigation in this case.
The contents of the FIR are being reproduced hereunder for a ready reference:-
“Information
Information has been received through various verified and reliable source to the extent that Sri Amit Lodha, an IPS officer of Bihar Cadre, the then
Inspector General of Police, Magadh Range, Gaya has been earning illicitly, ever since his posting at Gaya in connivance with Friday Story Teller LLP
and others in furtherance of criminal conspiracy and by indulging in private trade illegally which does not commensurate with his legal earnings.
It is alleged that the accused Sri Amit Lodha is not an established Story writer neither he was authorised nor permitted to write book and to use the
same for commercial purpose. Ignoring these facts, in order to earn illicitly and to convert the black money into white he used a book written by him
named ""Bihar Diary"" for production of a Web series named ""Khaki the Bihar Chapter."" by resorting to illegal activities.
It is alleged that Friday Story Teller Pvt. Ltd. has been producing film on a book written by this Amit Lodha and the reported cost of producing of his
Web serial/film is around 64 crores rupees and the expenditure is being incurred by Los Gatos Production Service India LLP which is the legal
representative of NETFLIX in India.
It is alleged that on 02.11.2018 there was an acquisition agreement between Sri Amit Lodha and Friday Story Teller Pvt. Ltd. and this acquisition
agreement was signed for Rs. 1 only, whereas from the records available it was gathered that the accused received Rs. 12,372/- on 18.08.2021 in his
HDFC bank A/c no-1651153000242 from Friday Story Teller.
It is further alleged that, with the same production house an agreement was also signed between Smt. Kaumudi Lodha in the name and style of Life
Story Rights acquisition agreement in order to facilitate the transaction of illicitly, acquired wealth from one account to the account Smt. Kaumaudi
Lodha w/o Sri Amit Lodha. It is further alleged that from this production house Rs. 38.25 Lakhs was paid in the account of the wife of the accused
between the periods 07.03.2019 to 13.09.2021. It is also alleged that the acquisition agreement was signed on 02.11.2018 between the accused Amit
Lodha and Friday Story Teller Pvt. Ltd. but the latter had paid Rs. 4.5 Lakhs and Rs. 6.75 Lakhs in the account of the wife of the accused on
27.12.2017 and 26.03.2018 respectively, much before the singing of the agreement. It is further alleged that there was heavy and regular transaction
of money from the account of Friday Story Teller to the account of Komudi Lodha his wife on different dates related to the production of film,
whereas as the matter of fact, the ultimate beneficiary was Amit Lodha, his wife and his associates including the Production House. The facts and the
circumstances, as regards the time of agreement dated-02.11.2018 with Friday Story Teller, agreement dt- 27.10.2020 and 15.02.2022 between Friday
Story Teller and Los Gatos Production Services India LLP the one sided flow of funds into the accounts of Smt. Komudi Lodha before the execution
of said agreement are indicative of the ulterior motive of Shri Amit Lodha for the purpose of giving a legitimate cover to his ill gotten money.
It is further alleged that Sri Amit Lodha, being a public servant illegally entered into private trade/commercial activities with a production house and
others and illicitly earned around Rs. 49,62,372/-till date by corrupt and illegal means which he cannot justify as public servant. The above criminal act
amount to acquisition of property illegally by indulging into Private Trade in conspiracy with his wife and others including the Production House.
During investigation more assets acquired by the accused may be unearthed.
Scrutiny of available govt. records available in public domain further reveal that the accused has acquired huge moveable/immovable properties which
is over and above appear to have been illicitly acquired and prima facie could not be justified from his legitimate legal sources of income and the
accused in unlikely to justify from his plausible legal sources of income.
The facts mentioned above prime facies disclose commission of offences u/s 13(1)(b) r/w 13(2) r/w 12 of PC Act 1988 (as amended 2018) and
120(B) & 168 of IPC on the part of Sri Amit Lodha the then Inspector General of Police and others and thus this case in registered under the
aforesaid sections of law and entrusted to Sri Chandra Bhushan, Dy.SP for investigation.
Sd/-
07.12.2022
(J.P. Mishra)
SP/SVU/Patnaâ€
5. Learned senior counsel for the petitioner submits that on a bare perusal of the FIR it would appear that the allegation against the petitioner is that of
indulging in ‘private trade’ in connivance with the Friday Story Tellers LLP which is an offence in terms of Section 168 IPC. He allegedly
received some income which does not commensurate with the legal earnings of the petitioner, hence, Section 13(1)(b) of the Prevention of Corruption
Act, 1988 (hereinafter referred to as the ‘P.C. Act’) would be attracted. It is submitted that the entire genesis of the prosecution rests upon the
allegations against the petitioner in respect of the Web Series namely ‘Khakee: The Bihar Chapter’ which is based on the fictionalized
story/script written by a noted film writer Uma Shankar being inspired by the book of the petitioner.
6. For purpose of quashing of the FIR, three grounds have been raised before this Court which are as follows:-
(i) The allegations set out do not constitute commission of any cognizable offence by the petitioner;
(ii) The FIR and the entire criminal proceedings arising therefrom, including its investigation, is vitiated with malafide and will result in malicious
prosecution, if allowed to continue and;
(iii) The impugned FIR has been registered without obtaining mandatory sanction under Section 17A of the P.C. Act.
7. Learned senior counsel submits that Explanation 1 of Section 13(1)(b) of the P.C. Act as amended vide Amendment Act, 2018 would not be
attracted in the case of the petitioner. According to his provision, 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. It is submitted that from the facts stated in
the FIR itself in the present case, it would be evident that the petitioner was never in possession of such resources which are disproportionate to his
known sources of income.
8. Learned senior counsel for the petitioner submits that the allegations against the petitioner are false and baseless. So far as his wife is concerned,
she has received the money for execution of legal contracts with ‘Friday Story Tellers’ for her services in her own independent rights. It has
been falsely stated in the impugned FIR that the petitioner ever since posted as I.G., Gaya had allegedly conspired with Friday Story Tellers LLP and
others. It is pointed out that the petitioner was appointed as I.G., Gaya in the year 2021, while all the agreements entered between the parties were
prior thereto when the petitioner was on Central deputation. It is, thus, submitted that the SVU did not have any jurisdiction to lodge the FIR in
question.
9. Learned senior counsel for the petitioner submits that the facts and circumstances under which total sum of Rs.49,50,000/- was received by the
wife of the petitioner from Friday Story Tellers have been fully explained by the prosecution in paragraph ‘5’ of the FIR itself wherein it is
stated that she had received the amount through banking channels pursuant to agreements with the said Company. It is submitted that the income of
the wife of the petitioner has also been duly reflected in her Income Tax Return (ITR) and she has declared her bank details in the annual assets
declaration of the petitioner to the Bihar Government. It is contented that the income received by the petitioner’s wife is absolutely lawful,
satisfactorily accounted-for and squarely covered under Explanation 2 to Section 13(1)(b) of the P.C. Act.
10. Relying upon the judgment of the Hon’ble Supreme Court in the case of DSP Chennai Vs. K. Inbasagaran (2006) 1 SCC 420, learned senior
counsel submits that in the said case it has been held by the Hon’ble Supreme Court that the income of the wife of public servant and the assets
which are owned by the wife of the public servant, such income and assets cannot be attributed to the public servant and he cannot be held liable for
having assets disproportionate to his income. The same view has been reiterated by the Hon’ble Apex Court in the case of Akhilesh Yadav Vs.
Vishwanath Chaturvedi & Ors. in Review Petition (Civil) No.272 of 2007. It is submitted that the petitioner signed the assignment agreement in favour
of the Friday Movies & T.V. Private Limited on 02.11.2018 for granting the adaptation rights of his book for a token sum of Rs.1/- only as
consideration is mandatory to make the said contract legally valid and enforceable. Since the petitioner has not taken any consideration, the provisions
of Section 168 IPC are not attracted. Further, the basic ingredients for the offence under Section 168 IPC is that any person who is public servant
should have engaged in trade while holding such office. Learned senior counsel relies upon the judgment of the Hon’ble Supreme Court in the
case of State of Gujarat VS. Maheshkumar Dhirajlal Thakkar AIR 1980 SC 1167.
11. It is submitted that the action of the petitioner in entering into assignment agreement would not attract any criminality. Reference has been made
to the judgment of the Hon’ble Supreme Court in the case of Kanwarjit Singh Kakkar VS. State of Punjab (2011) 13 SCC 158 to submit that
where no criminality is involved in the subject actions, even acts which violate government directions or conduct rules do not constitute an offence
either under Section 168 IPC or under P.C. Act.
12. Learned senior counsel submits that the SVU has filed a counter affidavit in this case in which the investigating agency has merely restated the
details of the assets already declared by the petitioner. It is submitted that the passport entries would show that the allegation that the petitioner had
gone to France in the year 2018 is not correct and further allegations in the counter affidavit that the petitioner has constructed any house in Jaipur is
also bereft of any material and is patently false.
13. It is further stated that the figures cited in the counter affidavit as regards the income tax statement of the accused and mutual fund investment
figures are grossly exaggerated inasmuch as the market values of the assets have been taken instead of the cost of acquisition and thereby raising
serious doubts over the intent as well as competence of the investigating agency.
14. It is submitted that the SVU does not have any quantum of disproportionate assets even after more than a year of the registration of the FIR.
15. Relying upon the judgment of the Hon’ble Supreme Court in the case of Surendra Singh Rathod & Anr. Vs. State of Rajasthan S.B. Crl.
Misc. (Petition) No.9187 of 2022, it is submitted that the Hon’ble Court has been pleased to hold that it would be abuse of the process of law for
an FIR registered in a causal and negligent manner to continue and on this ground the FIR was quashed.
16. It is submitted that in the case of Satish Mehra Vs. State of NCT of Delhi & Anr. AIR 2013 SC 506 it has been held that a criminal trial cannot be
allowed to assume the character of fishing and roving enquiry. It would not be permissible in law to permit a prosecution to linger, limp and continue on
the basis of a mere hope and expectation that in the trial some material may be found to implicate the accused.
17. It is pleaded that the impugned FIR has been registered in non-compliance of the statutory provisions which constitute an express legal bar and in
terms of State of Haryana VS. Bhajan Lal & Ors. 1992 Supp (1) SCC 335 the same deserves to be quashed. It is submitted that there is an element
of malice in the impugned FIR and the criminal action initiated against the petitioner is evident from the fact that on the one hand Section 168 IPC has
been invoked on the ground that the petitioner being a public servant has engaged in trade while holding such office and on the other hand it has been
stated that the provisions of the Section 17A of the P.C. Act are not required to be followed since the alleged acts done by the petitioner do not fall
within the ambit of act done in discharge of official duty.
18. Learned senior counsel for the petitioner submits that debates in the Rajya Sabha and Lok Sabha held on 19.07.2018 and 24.07.2018, the intention
of the legislatures behind incorporation of Section 17A of the P.C. Act may be found. It is submitted that the impugned FIR has been registered in
non-compliance of Circular No.428/07/2021-AVD.IV(B) dated 03.09.2021 issued by the Government of India, Ministry of Personnel, Public
Grievances and Pension regarding ‘Standard Operating Procedures (SOPs)’ for processing of cases under Section 17A of the P.C. Act. The
Hon’ble Supreme Court of India in Yashwant Sinha and Ors. Vs. Central Bureau of Investigation and Ors. (Review Petition (Crl.) No.46 of 2019
has held that in the absence of previous approval under Section 17A of the P.C. Act, there cannot be enquiry, inquiry or investigation in such cases.
Further the Hon’ble Division Bench of Bombay High Court also in the case of Anil Vasantrao Deshmukh Vs. State of Maharashtra, 2021 SCC
Online Bom 1192 has held that dishonest performance falls under the provisions of offences punishable under IPC and P.C. Act, however, there has
to be a reasonable nexus between the act complained and the discharge of official duty and as such the prior sanction under Section 17A of the P.C.
Act is mandatory in such cases. It is submitted that in the present case the prosecution has shown no nexus between official duty of the accused and
the production of the web series who has not been arraigned as an accused in the impugned FIR and the prosecution of their own admission has no
evidence against the producers till date.
19. Learned senior counsel has further relied upon a judgment in the case of State of Punjab VS. Davinder Pal Singh Bhullar and others (2011) 14
SCC 770 and a judgment of the Hon’ble Karnataka High Court in the case of Dr. Ashok V. Vs. the State by Hon’ble Lokayuktha of
Karnataka & Anr. Criminal Petition No.531/2022 to submit that in absence of mandatory approval for grant of registration of a crime, the very
registration of the crime tumbles down and whole paraphernalia of impugned FIR, subsequent investigations etc. remains illegal, void and non-est in
law.
20. Learned senior counsel for the petitioner has raised an issue of requirement of holding a preliminary inquiry in the facts of this case. It is submitted
that the impugned FIR has been registered without holding a preliminary inquiry and it has been done on the same date within three hours of receiving
the source information. It is submitted that in terms of the judgment of the Hon’ble Constitution Bench of the Supreme Court in the case of Lalita
Kumari Vs. Govt. of U.P. & Ors. (2014) 2 SCC 1 and another judgment in the case of P. Sirajuddin Etc. Vs. the State of Madras 1971 CRI.LJ 523,
holding of preliminary inquiry was essential and ought to have been done without any exception.
Stand of Respondent No.1 & 2
21. Learned counsel for the respondent nos. 1 and 2 has opposed the writ application. It is submitted that the FIR against the petitioner discloses
cognizable offences which are serious in nature and the investigation of this case is at a very crucial stage, therefore, this Court need not exercise its
extraordinary writ jurisdiction to quash the FIR and scuttle the investigation at its inception.
22. Learned counsel submits that the petitioner is a public servant, he had a permission from the level of DG, BSF for publication of his book through
Penguin house only but before entering into an agreement with a company for production of a film/web series on his written book the petitioner did not
take any permission from the competent authority which would attract Section 168 IPC. It is further submitted that the wife of the petitioner has
signed ‘Right Assignment Agreement’ for consideration amount of Rs. 25 lacs after being agreed by the petitioner to grant rights for production
of film on his story. The wife of the petitioner was not engaged anywhere else before signing the agreement with Producer-2. Only after written
agreement, she has signed another agreement with the same company as story consultant and the company has paid another Rs.27 lacs to her.
Payment of such huge amount to a new comer is under suspicion and it indicates that the amount has been paid for Amit Lodha by adopting another
way in the name of his wife. The investigation on this point is still pending and subject to verification.
23. Learned counsel submits that the FIR has been registered on the basis of information and the allegations which have been corroborated with the
materials available with the SVU.
24. As regards issue of preliminary inquiry, learned counsel submits that a preliminary inquiry is only conducted or required when information received
is not sufficient to register a regular case, however, when the information received is adequate to register a regular case no preliminary inquiry is
necessary. It will depend upon the facts of the case and no hard and fast rule may be laid down for this purpose. In the case of State of Telangana
VS. Managipet (2019) 19 SCC 87 and CBI and Anr. Vs. Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi and Anr. AIR 2021 SC 5041, it
has been held that a preliminary inquiry cannot be made mandatory for all cases of alleged corruption. In the case of Managipet (supra), the
Hon’ble Supreme Court has noted that the decision in Lalita Kumari (supra) held that preliminary enquiry was desirable in cases of alleged
corruption but that would not vest a right in the accused to demand a preliminary inquiry. Reliance has been placed on paragraphs 28, 29, 30, 32, 33
and 34 of the judgment of the Hon’ble Apex Court in Managipet (supra).
25. Learned counsel submits that in the present case the petitioner is facing an allegation of being in possession of disproportionate assets and there
are ample materials which would require an investigation, thus, the petitioner cannot claim as a matter of right that preliminary enquiry must be done
because he does not have this right in terms of the judgments of the Hon’ble Supreme Court.
26. As regards applicability of Section 17A of the P.C. Act, learned counsel for the respondent nos.1 and 2/SVU would submit that the protection of
Section 17A is available to a public servant and it operates against a police officer in conducting any enquiry or investigation into any alleged offence
which have been committed by a public servant under the P.C. Act without previous approval of the prescribed authority. It is submitted that the bar
would apply only when the offence allegedly committed by a public servant under the Act relates to any recommendation made or decision taken by
such public servant in discharge of his official functions or duties. It is submitted that Section 17A of the P.C. Act does not apply to cases involving
arrest of persons from the spot on the charge of accepting or attempting to accept any undue advantage for himself or any other person. The issue
raised by the petitioner as to applicability of Section 17A of the P.C. Act is to be considered in the given facts and circumstances of the case. The
investigation has revealed so far that the petitioner and his family members are holding twelve bank accounts in different banks with huge balances as
on 07.12.2022. The details have been provided in the counter affidavit.
27. Learned counsel submits that the petitioner has disclosed his income showing that he and his wife are engaged in business and speculative
business and are earning from these heads. The petitioner is a public servant and how a public servant is declaring income from business and
speculative business apart from salary is a matter of investigation. It is in teeth of Rule 13(1)(a) and 14 of the All India Services (Conduct) Rules 1968
and Section 168 IPC. It is submitted that a close and meticulous scrutiny of Section 17A of the P.C. Act reveals that it is not that every offence
alleged to have been committed by the public servant under the Act would need prior approval. In fact prior approval under Section 17A would be
required only when the alleged offences are relatable to any recommendation made or decision taken by public servant seems to be the heart and soul
of the above Section.
28. It is submitted that in the case of Hori Ram Singh VS. Emperor, AIR 1939 PC 43, H.B. Gill and Anr. Vs. King, AIR 1948 PC 129 and Matajog
Dubey Vs. H.C. Bhari, AIR 1956 SC 44 the Courts have held that the crucial test to determine whether a public servant acts or purports to act in
official capacity by holding that, if challenged, he can reasonably claim that, what he did was by virtue of his office, rather it is the quality of the act
that was important and if it falls within the ambit of its official acts/duties, the protection contemplated under Section 197(1) of Cr.P.C. will be
attracted. The same analogy would apply to Section 17A of the P.C. Act. In S.B. Saha and Anr. Vs. M.S. Kohchar, AIR 1979 SC 1841, it has been
held that for prosecuting public servant for dishonest misappropriation or conversion of goods which they have seized, sanction was not essential.
29. It is submitted that the protection envisaged under Section 17A of the P.C. Act is not a blanket protection and when the act of any official/person
is ex-facie criminal or constitute an offence and further any act which involves amassing wealth disproportionate to his known sources of income,
breach of trust and misappropriation of funds being ex-facie criminal, prior approval of the government/competent authority would not be
required/necessary. Reliance has been placed on the judgment in the case of T.O. Suraj Vs. State of Kerala, 2021 SCC Online Ker 2896, Satish
Pandey and Ors. Vs. UOI and Ors., Manu/CG/0097/2020, Shankar Bhat Vs. State of Kerala and Ors. CRL. M.C. No.7542/2018 dated 27.08.2021
and Rajendra Prasad Vs. The State of Bihar 2022(4) BLJ 189.
30. Learned counsel further submits that a provision like Section 17A of the P.C. Act in an anti-corruption law has to be interpreted in such a fashion
to strengthen fight against the corruption, where two constructions are eminently reasonable, the court has to accept the one that seeks to eradicate
corruption than the one which seeks to perpetuate it as held by the Hon’ble Supreme Court in the case of Dr. Subramanian Swamy Vs. Dr.
Manmohan Singh (2012) 3 SCC 64. In the case of Subramanian Swamy VS. Director, CBI AIR 2014 SC 2140, the Hon’ble Supreme Court held
that the criminal justice system mandates that any investigation into the crime should be fair, in accordance with law, should not be tainted. It is equally
important that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation resulting in
offender escaping the punitive course of law which are important facets of rule of law.
31. Learned counsel relies upon the judgment of the Hon’ble Supreme Court in the case of Superintendent of Police, CBI & Ors. Vs. Tapan
Kumar Singh AIR 2003 SC 4140 and in the case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Anr. AIR 2021 SC 1918 to
submit that it is only in cases where no cognizable offence is disclosed in the FIR that the Court will not permit an investigation to go on. It is submitted
that the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint and a
criminal proceeding ought not to be scuttled at the initial stage. It is further submitted that in a matter relating to an FIR with respect to
disproportionate assets case against a public servant, recently the Hon’ble Supreme Court in the case of State of Chhattisgarh and Anr. Vs.
Aman Kumar Singh and Ors. along with Uchit Sharma Vs. State of Chhattisgarh and Ors. reported in (2023) 6 SCC 559 has held that High Courts
should maintain a hands-off approach and not quash a first information report pertaining to “corruption†cases, specially at the stage of
investigation. Paragraph ‘80’ thereof has been relied upon. It is submitted that like the case of CBI & Anr. Vs. Thommandru Hannah
Vijayalakshmi @ T.H. Vijayalakshmi and Anr. (supra) the present case is also based on sourced information which have been duly and credibly
verified. The Hon’ble Supreme Court has well explained the category of cases in the case of State of Karnataka VS. J. Jayalalitha (2017) 6 SCC
263.
32. Learned counsel submits that the plea taken by the petitioner with regard to jurisdiction and limitation etc. are not worth acceptable. It is submitted
that the entire service period of the petitioner from 1998 to 07.12.2022 have been taken as the check period to arrive at a logical conclusion in respect
of disproportionate assets. During check period, the petitioner was posted at several places in the jurisdiction of SVU. He has accumulated assets
either on his own name or in the name of his family members. During the period, he was posted as I.G., Magadh Range, Gaya, in pursuance of his
agreement he had visited Mumbai in August, 2021 to meet the production team of web series and had received Rs. 12,372/- on 18.08.2021 from
Friday Story Teller LLP in his HDFC bank account. During his posting as I.G., Magadh Range, Gaya again he had visited the shooting site at Kurka
village near Ddaltanganj, Jharkhand on 16th September, 2021 to monitor the production/creation of web series. The petitioner stayed with the
production team there in the same hotel on 17.09.2021 and payment of Rs.75,900/- has been paid by the company. It is submitted that accumulation of
disproportionate assets is a continuous offence and the above facts are enough to prove the jurisdiction of SVU, Bihar, Patna to register the FIR
against the petitioner and others.
33. It is lastly submitted that in the facts of the present case, the investigation must be allowed to reach its logical conclusion. The claims of the
petitioner and his contentions in support thereof are devoid of merit and as such this application is fit to be dismissed.
Consideration
34. Having heard learned senior counsel for the petitioner and learned counsel for the SVU and upon perusal of the records, this Court finds that the
information which are part of the FIR in this case would demonstrate that the allegation against the petitioner is that of illicitly acquiring wealth as a
public servant. It is alleged that there were regular transactions’ of money from the account of Friday Story Tellers to the account of Komudi
Lodha, the wife of the petitioner on different dates related to the production of a film and the ultimate beneficiary of the same was this petitioner, his
wife and his associates. The allegations are being investigated. The allegations, without adding or substracting anything out of it, if taken on as it is, it
cannot be said that no cognizable offence would be made out.
35. There is another allegation that the petitioner being a public servant had illegally entered into a private trade with a production house and earned
around Rs. 49,62,372/-by corrupt and illegal means. At this stage, this Court is of the considered opinion that the contention of the SVU that the
scrutiny of available government records available in public domain reveal that the accused has acquired huge movable/immovable properties which is
over and above and have been illicitly acquired, cannot be examined by this Court by holding a pre-matured trial.
36. While arguing the writ application, learned senior counsel for the petitioner has attempted to furnish a lot of explanations and justifications behind
the alleged transactions with Friday Story Teller LLP, however, this Court is of the opinion that such explanations and justifications are not to be
considered by this Court at this stage. The case is still at investigation stage and the SVU in its report submitted before this Court has stated that in
order to arrive at a logical conclusion in this case at least six more months is needed. Learned counsel for the SVU has also taken the same plea in
course of hearing of this case.
37. The submission of learned senior counsel for the petitioner that lodging of the FIR in the present case without going for a preliminary inquiry is a
malafide action would not impress upon this Court as it is well settled that if the source informations are credible and those indicate towards
commission of a cognizable offence, the accused cannot be allowed to take a plea that no FIR could have been registered without holding a
preliminary inquiry. Learned counsel for the SVU has rightly relied upon the judgment of the Hon’ble Supreme Court in the case of Managipet
(supra) and T.H. Vijayalakshmi (supra). No malafide could be read only because a First Information Report has been lodged in this matter. Paragraph
‘33’ and ‘34’ of Managipet (supra) are being reproduced hereunder for a ready reference:-
“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 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) SCC 335 : 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 SCC 1 : (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.â€
38. As regards applicability of Section 17A of the P.C. Act, this Court is of the considered opinion that where credible informations are received
against a public servant of having accumulated assets disproportionate to his known source of income, unless the facts of the case rests on a very
special feature, no interference would be required in the garb of applicability of Section 17A of the P.C. Act. The judgment in the case of P.
Sirajuddin (supra) is clearly distinguishable on facts of the said case.
39. The observations of the Hon’ble Supreme Court in the case of Devendra Kumar Singh & Ors. Vs. CBI and Ors 2019 (1) Crimes 726 saying
that when the act of a public servant is ex-facie criminal or constitutes an offence, a cognizable one, prior approval of government/competent person
would not, at all, be necessary shall be the guiding factor. In the case of Aman Kumar Singh (supra), the Hon’ble Supreme Court has observed in
paragraph ‘79’ and ‘80’ as under:-
“ 79. 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. We can say without fear of
contradiction, it is not in all cases in our country that an individual, who is accused of acts of omission/commission punishable under the PC Act but
has the blessings of the ruling dispensation, is booked by the police and made to face prosecution. If, indeed, in such a case (where a prosecution
should have been but has not been launched) the succeeding political dispensation initiates steps for launching prosecution against such an accused but
he/she is allowed to go scot-free, despite there being materials against him/her, merely on the ground that the action initiated by the current regime is
mala fide in the sense that it is either to settle scores with the earlier regime or to wreak vengeance against the individual, in such an eventuality we
are constrained to observe that it is criminal justice that would be the casualty. This is because, it is difficult to form an opinion conclusively at the
stage of reading a first information report that the public servant is either in or not in possession of property disproportionate to the known sources of
his/her income. It would all depend on what is ultimately unearthed after the investigation is complete. Needless 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.
80. Having regard to what we have observed above in paras 47 to 50 (supra) and to maintain probity in the system of governance as well as to ensure
that societal pollutants are weeded out at the earliest, it would be eminently desirable if the High Courts maintain a hands-off approach and not quash
a first information report pertaining to “corruption†cases, specially at the stage of investigation, even though certain elements of strong-arm
tactics of the ruling dispensation might be discernible. The considerations that could apply to quashing of first information reports pertaining to offences
punishable under general penal statutes ex proprio vigore may not be applicable to a PC Act offence. Majorly, the proper course for the High Courts
to follow, in cases under the PC Act, would be to permit the investigation to be taken to its logical conclusion and leave the aggrieved party to pursue
the remedy made available by law at an appropriate stage. If at all interference in any case is considered necessary, the same should rest on the very
special features of the case.â€
40. In the present case, as per the allegations and the evidences which have been collected so far, it is contended that the petitioner has accumulated
assets valued more than 7 crores even as his total income from all legal sources would not be more than 2 crores in gross without any deductions. The
investigation of the case is still pending and the SVU has come out with a statement in its report that the investigation will take at least six more
months.
41. In the facts and circumstances of the case, this Court finds no merit in this writ application. No interference is required by this Court to scuttle the
investigation of the case.
42. Having said so, this Court cannot remain oblivious of the fact that in this case the First Information Report has been lodged on 07.12.2022 and
more than one year has gone in the on-going investigation. In the case of Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar reported in
AIR 1979 SC 1360, the Hon’ble Supreme Court has held that speedy trial is a part of fundamental right to life and liberty. It is an integral and
essential part of Article 21 of the Constitution of India. A proper and fair investigation has been held to be an essential component of the concept of
speedy trial and it has its roots embedded in a reasonably fair and just procedure.
43. In A.R. Antulay & Others Vs. R.S. Nayak & Anr. reported in (1992) 1 SCC 225, the Hon’ble Supreme Court held that Right to speedy trial
flowing from Article 21of the Constitution of India encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-
trial.
44. In the case of Amar Nath Chaubey Vs. Union of India & Others reported in (2021) 11 SCC 804, the Hon’ble Supreme Court while dealing
with duty of police and aim of the investigation held that a fair investigation is a necessary concomitant of Articles 14 and 21 of the Constitution of
India and being a constitutional Court, this Court has the bounden obligation to ensure adherence by the police. Paragraph ‘11’ of the judgment
in Amar Nath Chaubey reads as under:-
“11. The police has a statutory duty to investigate into any crime in accordance with law as provided in the Code of Criminal Procedure.
Investigation is the exclusive privilege and prerogative of the police which cannot be interfered with. But if the police does not perform its statutory
duty in accordance with law or is remiss in the performance of its duty, the court cannot abdicate its duties on the precocious plea that investigation is
the exclusive prerogative of the police. Once the conscience of the court is satisfied, from the materials on record, that the police has not investigated
properly or apparently is remiss in the investigation, the court has a bounden constitutional obligation to ensure that the investigation is conducted in
accordance with law. If the court gives any directions for that purpose within the contours of the law, it cannot amount to interference with
investigation. A fair investigation is, but a necessary concomitant of Articles 14 and 21 of the Constitution of India and this Court has the bounden
obligation to ensure adherence by the police.â€
45. In Mohammed Zubair Vs. State of NCT of Delhi & Others reported in AIR 2022 SC 3649, the Hon’ble Supreme Court has inter-alia
reiterated paragraph ‘60’ of the judgment rendered in the case of Arnab Ranjan Goswami Vs. Union of India reported in (2020) 14 SCC 12
which reads as under:-
“60.[...] Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed.
The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum â€" the district judiciary, the High Courts and the
Supreme Court â€" to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both
ends of the spectrum â€" the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the
law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of
her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a
casualty when one of these components is found wanting.â€
46. This Court would, thus, direct the investigating agency to take the investigation of this case to its logical end within a period of six months from
today. The investigating agency i.e. SVU shall ensure that the investigation be conducted in proper and fair manner in accordance with law. The
investigation must be fair and in no case the pending investigation be allowed to be used as ruse for targeted harassment. The petitioner shall be
obliged to cooperate with the investigating agency as and when required.
47. While parting with this brief, this Court makes it clear that no part of the observations of this Court hereinabove would cause prejudice to the
petitioner in the on-going investigation and it will be open to him to take all such pleas which may be available to the petitioner at an appropriate stage
in accordance with law.
48. This writ application stands disposed of accordingly.