Supreme Court of India
THE STATE OF JAMMU & KASHMIR AND OTHERSversusDR. SALEEM UR REHMAN
- Citation
- 2021 INSC 703
- Decided
- 29 October 2021
- Disposal
- Appeal(s) allowed
- Bench
- M R SHAH
Holding
The Court held that the senior superintendent’s written authorisation under the second proviso of Section 3 of the J&K Prevention of Corruption Act was valid without a reasoned order, that no magistrate’s sanction is required for investigating cognizable offences even if a non‑cognizable offence is involved, that a preliminary enquiry under Rule 3.16 does not render the FIR illegal, and that the respondent can be held liable, thereby setting aside the High Court’s quashing order.
Summary
The State of Jammu & Kashmir appealed against a High Court order that quashed FIR No. 32/2012 and the entrustment order authorising Inspector Nisar Hussain to investigate alleged corruption and conspiracy offences under the J&K Prevention of Corruption Act, 2006 and Section 120B of the Ranbir Penal Code. The High Court had held that the senior superintendent’s authorisation was invalid for lacking a reasoned order, that a magistrate’s sanction under Section 155 J&K Cr.P.C. was required for investigating the non‑cognizable conspiracy offence, that the preliminary enquiry under Rule 3.16 of the Vigilance Manual was ultra‑vires, and that the respondent could not be held vicariously liable. The Supreme Court examined the statutory scheme of Section 3 of the J&K PC Act, the precedent of Bhajan Lal and Ram Singh, and the principles laid down in Pravin Chandra Mody and Lalita Kumari. It held that the written authorisation satisfied the statutory requirements, that no magistrate’s sanction is needed for cognizable offences even when a non‑cognizable offence is involved, and that the preliminary enquiry does not invalidate the FIR. Consequently, the Court set aside the High Court’s order and allowed the appeal, directing that the investigation continue.
Issues considered
- Whether Section 3 of the J&K Prevention of Corruption Act, 2006 is a mandatory provision and its non‑adherence vitiates the investigation
- Whether prior sanction of a Magistrate under Section 155 J&K Cr.P.C. is mandatory for investigating cognizable offences together with a non‑cognizable offence
- Whether a preliminary verification under Rule 3.16 of the Vigilance Manual can be used to verify the veracity of a complaint before registration of an FIR
- Whether a juridical person can be held vicariously liable for criminal conspiracy
- Whether Rule 3.16 of the Vigilance Manual, 2008 is ultra vires in view of the Lalita Kumari judgment
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 156, s. 156(2), s. 173, s. 190
- Jammu & Kashmir Criminal Procedure Codes. 155
- Jammu & Kashmir Prevention of Corruption Act, 2006s. 3, s. 5(1)(d), s. 5(2)
- Ranbir Penal Codes. 120B
Subjects
Prevention of Corruption Actauthorisationcognizable offencenon‑cognizable offencepreliminary enquiryVigilance Manualmagistrate sanctionvicarious liabilitycriminal conspiracyJammu & Kashmir
Judgment
864 [2021]REPORTS
SUPREME COURT 10 S.C.R. 864 [2021] 10 S.C.R.
A THE STATE OF JAMMU & KASHMIR AND OTHERS
v.
DR. SALEEM UR REHMAN
(Criminal Appeal No. 1170 of 2021)
B OCTOBER 29, 2021
[M.R. SHAH AND A.S. BOPANNA, JJ.]
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
C
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
D 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
E
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
F 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
G
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
H including the FIR – Ranbir Penal Code – s.120-B.
864
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 865
J&K Prevention of Corruption Act, 2006: s.155 – Non- A
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
B
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 C
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
D
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, E
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.
F
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 G
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 H
866 SUPREME COURT REPORTS [2021] 10 S.C.R.
A 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.
B
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
C 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
D 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
E 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.
F 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.
Allowing the appeal, the Court
G
HELD: 1.1 It cannot be said that there was any non-
application of mind on the part of the Senior Superintendent of
Police authorising the inspector ‘NH’ to enquire into the FIR for
the offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act,
2006 and 120-B of the Ranbir Penal Code. Inspector ‘NH’ who
H
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 867
was authorised to investigate the FIR for the said offences was A
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 (BKB). Therefore,
all precautions are taken by the Senior Superintendent of Police
B
authorising the Inspector ‘NH’ to investigate the FIR for the
offences under the J&K PC Act, 2006. [Para 8.6][893-G-H;
894-A-B]
State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC
335 : [1990] 3 Suppl. SCR 259; State of M.P. v. Ram
Singh (2000) 5 SCC 88: [2000] 1 SCR 579 – relied C
on.
1.2 Even otherwise, a plain reading of the second proviso
to Section 3 showed 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 D
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 E
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 ‘NH’ to
investigate the FIR for the offences under Sections 5(1)(d) r/w F
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. Therefore,
as such, the High Court has committed a grave error in quashing
the entire criminal proceedings holding that authorisation in favour G
of Inspector ‘NH’ was bad in law, relying upon the observations
made by this Court in the case of Bhajan Lal, which has been
subsequently explained by this court in the case of Ram Singh. In
the facts and circumstances of the case and considering the
authorisation read with the second proviso to Section 3,
H
868 SUPREME COURT REPORTS [2021] 10 S.C.R.
A authorisation cannot be said to be illegal and/or invalid.
[Para 8.6][894-C-G]
2.1 Now so far as the finding recorded by the High Court
for non-compliance of Section 155 of J&K Cr.P.C. is concerned,
the High Court has observed that for an investigating agency to
B 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 present case no
such sanction from the concerned Magistrate was obtained, the
substantive offences against the respondent were under J&K
PC Act, 2006 and as per Section 3 of the Act, all offences under
C the Act are cognizable and non-bailable. As such, the aforesaid
issue is squarely covered against the respondent in view of the
decision of this Court in the case of Pravin Chandra Mody.
[Para 9][894-G-H; 895-A-B]
Pravin Chandra Mody v. State of Andhra Pradesh
D [1965] 1 SCR 269 – relied on.
2.2 In the instant case, 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
E 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
F and affect the investigation and it will derail the investigation.
Therefore, the High Court has erred in quashing the criminal
proceedings on the ground that as the offence under Section
120B which is a non-cognizable, prior sanction as required under
Section 155 of J&K Cr.P.C. is not obtained. [Para 10][895-G-H;
896-A-B]
G
3. Rule 3.16 of the Vigilance Manual, 2008 can be said to
be in consonance with the observations and the law laid down by
this Court in the case of Lalita Kumari. A close reading of Rule/
Clause 3.16 showed that even the same can be said to be in the
interest of the accused and/or a person against whom the
H
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 869
allegations are made and to safeguard the accused against A
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
B
within a period of six months. It is the case on behalf of the
respondent and even as observed and held by the High Court in
the impugned judgment and order as per the law laid down by
this Court 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 C
within a period of 7 days is concerned, it is to be noted that in the
case of Lalita Kumari, 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.
[Paras 11, 12][896-C, G-H; 897-A-B]
D
Lalita Kumari v. Government of Uttar Pradesh AIR 2014
SC 187 : 2014 (2) SCC 1: [2013] 14 SCR 713; State of
Punjab v. Brij Lal Palta [1969] 1 SCR 853; Satya
Narain Musadi v. State of Bihar (1980) 3 SCC 152;
Madan Lal v. State of Punjab [1967] 3 SCR 439;
Bhanwar Singh v. State of Rajasthan [1968] 2 SCR 528 E
– relied on.
4.1 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
which requires further investigation after registering the FIR. F
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 G
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
H
870 SUPREME COURT REPORTS [2021] 10 S.C.R.
A 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
B
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
C and declaring Clause 3.16 as ultra vires. [Para 13][897-D-H]
4.2 Now so far as the 4th ground/question on which the High
Court has quashed the criminal proceedings, namely, the
respondent cannot be held vicariously liable in the absence of
main conspirators – Private Limited Companies and/or their in-
D charge persons is concerned, it is to be noted that the allegations
against the respondent are in respect of his individual capacity.
Besides the Directors of the Private Limited Companies,
respondent no.1 and other officials have been arrayed as an
accused. Therefore, there is no question of any vicarious liability
and the observations made by the High Court that in absence of
E main conspirators – Private Limited Companies and/or their in-
charge persons, respondent no.1 cannot be held liable is
unsustainable and cannot be accepted. The High Court has erred
in quashing the entire criminal proceedings on the aforesaid
ground. [Para 14][898-A-C]
F S.N. Mukherjee v. Union of India (1990) 4 SCC 594 :
[1990] 1 Suppl. SCR 44; Union of India v. E.G.
Nambudiri (1991) 3 SCC 38 : [1991] 2 SCR 451; Oryx
Fisheries Pvt. Ltd. v. Union of India (2010) 13 SCC
427 : [2010] 13 SCR 234; Special Land Acquisition
G Officer, Bombay v. Godrej & Boyce (1988) 1 SCC 50 :
[1988] 1 SCR 590; Indian National Congress v. Institute
of Social Welfare (2002) 5 SCC 685 : [2002] 3
SCR 1040; Nazir Ahmad v. The King Emperor AIR 1936
PC 253; State of Uttar Pradesh v. Singhara Singh
H
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 871
[1964] 4 SCR 485; Priyanka Srivastava v. State of Uttar A
Pradesh (2015) 6 SCC 287 : [2015] 4 SCR 108 –
referred to.
Taylor v. Taylor (1875) 1 Ch.D, 426, 431– referred to.
Case Law Reference
B
[1990] 1 Suppl. SCR 44 referred to Para 6.7
[1991] 2 SCR 451 referred to Para 6.7
[2010] 13 SCR 234 referred to Para 6.7
[1988] 1 SCR 590 referred to Para 6.8
C
[2002] 3 SCR1040 referred to Para 6.8
[1965] 1 SCR 269 referred to Para 6.10
[1969] 1 SCR 853 relied on Para 11
(1980) 3 SCC 152 relied on Para 11 D
[1967] 3 SCR 439 relied on Para 11
[1968] 2 SCR 528 relied on Para 11
AIR 1936 PC 253 referred to Para 7.4
[1964] 4 SCR 485 referred to Para 7.4 E
[2015] 4 SCR 108 referred to Para 7.13
[1990] 3 Suppl. SCR 259 relied on Para 8.4
[2000] 1 SCR 579 relied on Para 8.4
[2013] 14 SCR 713 relied on Para 12 F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1170 of 2021.
From the Judgment and Order dated 07.05.2018 of the High Court
of Jammu and Kashmir at Srinagar in OWP No.1961 of 2015.
G
R. Venkataramani, Sr. Adv., Ms. Taruna Ardhendumauli Prasad,
Parth Awasthi, Chitwan Singhal, Advs. for the Appellants.
R. Basant, Sr. Adv., P. V. Dinesh, Salih Pirzada, Ashwini Kumar
Singh, Bineesh K., Advs. for the Respondent.
H
872 SUPREME COURT REPORTS [2021] 10 S.C.R.
A The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 07.05.2018 passed by the High Court of Jammu &
Kashmir at Srinagar in O.W.P. No. 1961/2015, by which the High Court
B in exercise of its extra-ordinary jurisdiction has quashed the criminal
proceedings being FIR No. 32/2012 and has declared Rule 3.16 of the
Vigilance Manual, 2008 dealing with the Preliminary Enquiry (PE) being
in direct conflict with the Constitution Bench Judgment of this Court in
the case of Lalita Kumari v. Government of Uttar Pradesh, reported
C in AIR 2014 SC 187 = 2014 (2) SCC 1, and consequently has declared
the same ultra vires, the State has preferred the present appeal.
2. That an FIR being FIR No. 32/2012, Police Station, VOK was
registered against the respondent herein under Section 5(1)(d) r/w 5(2)
of the J&K Prevention of Corruption Act, 2006 (hereinafter referred to
D as the ‘J&K PC Act, 2006’) and Section 120B of the Ranbir Penal
Code (hereinafter referred to as the ‘RPC’) alleging inter alia 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
E of the conditions of supply orders placed by the department. It was
alleged against the respondent as under:
i) The respondent herein purchased various drug kits under
NRHM Scheme from 4 CPSEs through limited tender and
all the 4 CPSEs surprisingly quoted same rates. It was
F decided to place supply orders to the tune of 25% from
each of the CPSEs.
ii) The quoted rates by the 4 CPSEs were far in excess when
compared to rates on which purchases had been affected
during previous year. The Respondent herein wilfully ignored
G the rates at which the same kind of drug kits were purchased
by the department from private companies as per rate
contract dated 28-03-2009 valid for one year approved by
Rate Contract Committee No.1 of Health & Medical
Education whereby the rates of drug kits were far less than
as quoted by the 4 CPSEs, the comparison is as under: -
H
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 873
[M. R. SHAH, J.]
A
B
C
It is pertinent to point out that the Respondent herein had
full knowledge of approved rates of drug kits valid for year
2009-10, as he was then posted as Assistant Director, Family
Welfare & Reproductive Child Health Care and was D
designated as member of Sub-Committee of Purchase
Committee No.1 which approved the rates for the year
2009-10.
iii) No market survey was conducted to ascertain the
genuineness of rates quoted by the firms nor any negotiations E
were done to ensure that Government exchequer was not
put to any loss etc during the year 2010-11.
iv) No samples of drug kits were obtained to verify the quality
control check over packing & Packaging of medicines and
kits. F
v) The Respondent herein purchased NRHM kits not from
the original manufacture but from suppliers at exorbitant
rates.
vi) The purchased kits and the medicines were not of required
standard. Further maximum drugs/items constituting the G
three types of kits were actually been manufactured by
private agencies and not by the CPSEs themselves or by
their subsidiaries as a result of which undue benefit has
accrued to the private agencies under the garb of PPP,
which was never the intent of it.
H
874 SUPREME COURT REPORTS [2021] 10 S.C.R.
A vii) As per the guidelines laid down by Ministry of Health &
Family Welfare Govt. of India and Ministry of Chemicals
& Fertilizers Govt. of India, Purchase Preference Policy
(PPP) for CPSEs was valid only in respect of 102 drugs/
medicines, whereas various components of the three
mentioned drug kits were not figuring in 102 listed drugs
B
under PPP.
viii) As per the guidelines of GOI, the rates of drugs constituting
the drug kits should be as per rates fixed by National Pharma
Pricing Authority with discount of up to 35%. It is pertinent
to point out that the purchasing department did not seek
C any rate list of NPPA or rate analysis from the supplier
CPSEs to ascertain whether the rates quoted are actually
as certified by NPPA and further to see whether a discount
up to 35% has been given on such rates.
ix) All the 4 CPSEs raised objection to the condition laid down
D in Clause No.02 of the Supply Orders wherein it was stated
that all the drugs and items should be manufactured by the
firm itself and no drug/item will be accepted manufactured
by any other concern. The Respondent herein issued
corrigendum thereby modifying the earlier order which
E conveyed that the items can be purchased from other
sources also and thus the already purchased substandard
items were passed by the New Board, thereby causing a
loss of Rs. 1,04,99,429/- to the State exchequer.
3. The respondent-accused approached the High Court by way
F of O.W.P. No. 1961/2015 invoking its extra-ordinary jurisdiction to quash
the aforesaid criminal proceedings, raising the following questions:
a) Whether Section 3 of the Prevention of Corruption Act is a
mandatory provision and its non-adherence vitiates the
investigation?
G b) Whether prior sanction of a Magistrate under Section 155
Jammu & Kashmir Cr.P.C. is mandatory for investigating
cognizable offences along with non-cognizable?
c) Whether under the pretext of Preliminary Verification the
investigating agency can verify the veracity of a complaint
H before registration of FIR?
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 875
[M. R. SHAH, J.]
d) Whether an offence like that of Criminal Conspiracy can A
be committed by a juridical person like a company?
Heavy reliance was placed on the decision of this Court in the
case of State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335 as
well as the decision of this Court in the case of Lalita Kumari (supra).
4. By the impugned judgment and order, the High Court has B
quashed the entire criminal proceedings initiated against the respondent
for the aforesaid offences by holding that:
(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 C
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; D
(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 (supra); and E
(4) the allegations made in the FIR even if accepted to be true
in its entirety are legally not tenable.
4.1 Holding above, the High Court has quashed the preliminary
verification No. 34/2011, FIR No. 32/2012, Police Station, Vigilance
F
Organisation Kashmir and the resultant investigation of the FIR. The
High Court has also quashed the Entrustment Order dated 16.11.2012
passed by the Senior Superintendent of Police, VOK, Srinagar authorising
the investigating officer to investigate the case/offences. The High Court
has also declared Rule 3.16 of the Vigilance Manual, 2008 dealing with
Preliminary Enquiry (PE) as ultra vires on the ground that the same is in G
direct conflict with the decision of this Court in the case of Lalita Kumari
(supra).
5. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, the State of Jammu & Kashmir has
preferred the present appeal. H
876 SUPREME COURT REPORTS [2021] 10 S.C.R.
A 6. Shri R. Venkataramani, Learned Senior Advocate has appeared
on behalf of the appellants and Shri R. Basant, Learned Senior Advocate
has appeared on behalf of the respondent.
6.1 Shri R. Venkataramani, Learned Senior Advocate appearing
on behalf of the State has vehemently submitted that in the facts and
B circumstances of the case, the High Court has committed a grave error
in quashing the entire criminal proceedings including the FIR and even
the Entrustment Order dated 16.11.2012.
6.2 It is submitted that the High Court formulated the four questions,
which are reproduced hereinabove. It is submitted that so far as question
C no. 1, whether Section 3 of the Prevention of Corruption Act is a
mandatory provision and its non-adherence vitiates the investigation is
concerned, it is submitted that the conclusions drawn by the High Court
are in disregard of the relevant provisions of the J&K PC Act, 2006 and
the J&K Cr.P.C.
D 6.3 It is submitted that the reliance placed on the decision of this
Court in the case of Bhajan Lal (supra) is absolutely misconceived. It
is submitted that in Bhajan Lal’s case, Sections 3 & 5A of the
Prevention of Corruption Act, 1947 (hereinafter referred to as the ‘1947
Act’), prior to the amendment of the Act in 1988, fell for consideration.
It is submitted that Section 3 of the J&K PC Act, 2006 under which the
E prosecution in question was initiated does not correspond either to Section
3 or Section 5A of the 1947 Act. It is submitted that J&K PC Act, 2006
does not contain a provision corresponding to Section 5A of the 1947
Act.
6.4 It is submitted that the High Court has not properly appreciated
F the fact that the reasoning adopted in Bhajan Lal’s case on requirement
of giving reasons for an authorisation under Section 5A of the 1947 Act,
had arisen in the context of the special provisions of Section 5A. It is
submitted that the Court has treated the requirement of giving reasons
by a Magistrate in the context of giving permission to a non-designated
G officer to conduct investigation, and the administrative function of
delegation of function of investigation by a superior police officer to a
subordinate police officer, as comparable. It is submitted that in view of
the fact that Section 3 of the J&K PC Act, 2006 with its own special
scheme of delegation enacted in the second proviso to Section 3, reliance
on Bhajan Lal’s case which was with reference to Section 5A of the
H 1947 Act is absolutely misconceived.
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 877
[M. R. SHAH, J.]
6.5 It is further submitted that as such the decision of this Court in A
the case of Bhajan Lal (supra) has been subsequently explained by
this Court in the case of State of M.P. v. Ram Singh (2000) 5 SCC 88.
It is submitted that in the case of Ram Singh (supra), the order of the
Superintendent of Police authorising the Inspector to investigate the
offence under the Prevention of Corruption Act, 1988 indicating the name
B
of the accused, number of the FIR, the nature of the offence and the
power of the Superintendent of Police permitting him to authorise a junior
officer to investigate, the same is held to be a valid authorisation. It is
submitted that in the aforesaid decision, this Court has distinguished the
decision of this Court in the case of Bhajan Lal (supra). It is submitted
that therefore the subsequent decision of this Court in the case of Ram C
Singh (supra) will squarely apply to the facts of the case in hand.
6.6 It is submitted that authorisation in the present case by the
Senior Superintendent of Police, Vigilance Organisation is clearly covered
by and falls within the scope of the second proviso to Section 3. It is
submitted that the High Court has not adverted to the distinct features of D
the second proviso to Section 3. It is submitted that the second proviso
does not demand the requirement of giving reasons for conferring authority
on a non-designated officer to conduct investigation.
6.7 It is further submitted that unlike discharge of functions, judicial
or quasi-judicial in nature, an administrative authority is not obliged to E
give reasons in the discharge of all its functions. It is submitted that the
second proviso to Section 3 has been enacted for administrative
convenience and for expeditious investigation. It is submitted that in the
very nature of such functions, it can be presumed that the reasons need
not be given for authorising an officer of vigilance organisation to conduct
investigation. In support of above, reliance is placed on the decisions of F
this Court in the cases of S.N. Mukherjee v. Union of India, (1990) 4
SCC 594; Union of India v. E.G. Nambudiri, (1991) 3 SCC 38 and
Oryx Fisheries Pvt. Ltd. v. Union of India, (2010) 13 SCC 427.
6.8 It is submitted that therefore the requirement of giving reasons
for the authorisation referred to in the second proviso to Section 3 is G
misconceived. Firstly, the proviso itself does 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 need to be given. It is submitted that the
matter of delegation of the power to investigate upon a non-designated H
878 SUPREME COURT REPORTS [2021] 10 S.C.R.
A officer, does not involve rights of any party. There is no lis in the matter.
The actions taken under the second proviso are not subject to any appeal,
or revision. It is submitted that only where rights of parties are involved;
the nature of the function in question is quasi-judicial, or is in the hierarchy
of appellate or revisional power, reasons may be required to be given
and not otherwise. Reliance is placed on the decisions of this Court in
B
the cases of Special Land Acquisition Officer, Bombay v. Godrej &
Boyce, (1988) 1 SCC 50 and Indian National Congress v. Institute
of Social Welfare, (2002) 5 SCC 685.
6.9 Now so far as question no.2, whether prior sanction of a
Magistrate under Section 155 of the J&K Criminal Procedure Code is
C mandatory for investigating cognizable offences along with non-cognizable
offences is concerned, it is submitted that the High Court has compared
Section 155 of the J&K Cr.P.C. and Section 155 of the Cr.P.C., 1973. It
is submitted that a particular reference has been made to sub-section
(4) of Section 155 of the Cr.P.C., 1973. It is submitted that the High
D Court by holding that the J&K Cr.P.C. does not have in Section 155 a
provision comparable to sub-section (4) of Section 155 of the Cr.P.C.,
1973, has reached the conclusion that in the absence of a valid sanction
by the Magistrate as provided under Section 155 of the J&K Cr.P.C.,
the investigation is illegal.
E 6.10. It is submitted that the aforesaid issue is squarely covered in
favour of the State in view of the decision of this Court in the case of
Pravin Chandra Mody v. State of Andhra Pradesh, 1965 (1) SCR
269 (para 6).
6.11 Learned Senior Advocate appearing on behalf of the State
F has also taken us to the legislative history behind Section 155(4) and the
37th Report of the Law Commission regarding investigation of a cognizable
offence in the company of a non-cognizable offence, particularly the
requirement of obtaining an authorisation from the Magistrate. It is
submitted that pursuant to the 41st Report of the Law Commission, sub-
section (4) was inserted in Section 155 Cr.P.C. It is submitted that as
G observed in the 37th Report, the law has already been laid down by this
Court in the case of Pravin Chandra Mody (supra) and what was
required to be done was only to enact a provision on the lines of Pravin
Chandra Mody (supra). It is submitted that decision of this Court in
the case of Pravin Chandra Mody (supra) has been considered
H subsequently by this Court in the cases of State of Punjab v. Brij Lal
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 879
[M. R. SHAH, J.]
Palta (1969) 1 SCR 853; Satya Narain Musadi v. State of Bihar, A
(1980) 3 SCC 152; Madan Lal v. State of Punjab, (1967) 3 SCR
439; and Bhanwar Singh v. State of Rajasthan, (1968) 2 SCR 528.
6.12 It is submitted that the issue as to whether an investigation in
respect of offences under the Prevention of Corruption Act, when coupled
with the offence of conspiracy should always be subject to a prior sanction B
by the Magistrate, has to be seen from the perspective that merely
because the offence of conspiracy may be involved, investigation into
the substantive offences which are cognizable should await a sanction
from the Magistrate, as that would lead to considerable delay and
uncertainty in the threshold investigation steps. It does not matter that
the offence of conspiracy under Section 120B is also treated as a C
substantive offence.
6.13 It is submitted that if the view taken by the High Court is
correct law, it will be in the case of investigation under every special
statute where the offences are cognizable, a link with 120B of conspiracy
offence will derail all such investigations and lead to delay. D
6.14 Now so far as question no.3, namely, whether under the
pretext of preliminary verification, the investigating agency can verify
the veracity of a complaint before registration of FIR and the observations
and the findings recorded by the High Court that Rule 3.16 of J&K
Vigilance Manual, 2008 is in direct conflict with the judgment of this E
Court in the case of Lalita Kumari (supra) is concerned, it is submitted
that the view taken by the High Court is absolutely misconceived. It is
submitted that Lalita Kumari (supra) takes note of special procedure
to be followed in the cases of special statutes. Sections 4 & 5 of the
Code of Criminal Procedure, 1973 have also been noticed by the High F
Court. Having regard to the wide spectrum of statutory offences to be
investigated under ever increasing special statutes, it would be unwise
to thwart the investigation and the prosecution on the touchstone of
irregularities, if any, in the conduct of preliminary investigations and
registrations of FIR. It is submitted that Rule 3.16 of the Vigilance
Manual, 2008 is a well-drawn scheme fitting in squarely with the G
provisions of Sections 4 & 5 of the Cr.P.C., 1973.
6.15 It is further submitted that in the very nature of the investigation
of such offences as the instant case which may involve not only collection
of documentary evidence but other preliminary statements to be obtained
for the purpose of investigation, in order to rule out the absence of H
880 SUPREME COURT REPORTS [2021] 10 S.C.R.
A commission of any offence, time will necessarily be consumed. It may
also become inevitable that materials so collected become part of the
investigation as well, which may be of considerable guidance in the course
of investigation. It is submitted that Lalita Kumari (supra) does not
confer any right on the accused to seek a declaration of illegality in
cases of irregularity in the conduct of preliminary enquiry. It is submitted
B
that no accused who is otherwise prima facie guilty of commission of
offence can walk free from prosecution and punishment if they are
otherwise due. It is submitted that ultimately the test to be applied will
be, whether there is a failure or miscarriage of justice. It is submitted
that instead of applying the above-said principles, the High Court has
C unduly intervened and has erred in quashing the prosecution.
6.16 Now so far as the conclusions drawn under question no.4
are contrary to the record of the case. It is submitted that besides the
Directors of Private Limited Company, respondent no.1 and other officials
have been arrayed as the accused. It was not necessary that any person
D in the State NRHM machinery should have been suspected and treated
as co-conspirators. It is submitted that according to the investigation, the
conduct of respondent no.1 and other officials accused in the course of
the Tender Process for purchase of the material in question, alone became
suspect events. It is submitted that therefore the High Court has
committed a grave error in quashing the prosecution, holding question
E no.4 against the State.
6.17 Making the above submissions and relying upon the aforesaid
decision, it is prayed to allow the present appeal.
7. The present appeal is vehemently opposed by Shri R. Basant,
F learned Senior Advocate appearing on behalf of the respondent. It is
submitted that in the facts and circumstances of the case and on true
interpretation of Section 3 of J&K PC Act, 2006 and in the absence of
prior sanction of the Magistrate under Section 155 of the J&K Cr.P.C.,
the High Court has rightly quashed the criminal proceedings initiated
against the respondent.
G
7.1 It is submitted that the High Court has rightly observed that
under the pretext of the Preliminary Enquiry (PE), the investigating agency
cannot go in detail and verify the veracity of the complaint before
registration of an FIR. It is submitted that therefore the High Court has
rightly declared Rule 3.16 of the Vigilance Manual, 2008 dealing with
H Preliminary Enquiry as ultra vires.
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 881
[M. R. SHAH, J.]
7.2 It is submitted that the investigation under the J&K PC Act, A
2006 is controlled by Section 3 of the Act and as such carries a non-
obstante clause which precludes the procedure under Cr.P.C. It is
submitted that amended section makes all the offences under the PC
Act cognizable. It is submitted that Section 3 contains two provisos,
which in fact create an embargo on the mode of investigation. As per
B
the first proviso, inter alia, no police officer below the rank of DSP shall
investigate any offence under the Act without the order of the Magistrate.
The second proviso creates an exception to the condition provided in the
first proviso and as per the second proviso, an officer of the Vigilance
Organisation of and above the rank of Sub-Inspector of Police may
investigate such offences but if specially authorised in writing by an C
officer of the Vigilance Organisation not below the rank of Assistant
Superintendent of Police. It is submitted that in the instant case the
investigation of the FIR under challenge was entrusted to Inspector Nisar
Hussain. This officer being a non-designated officer for the purpose of
Section 3, therefore, must be specially authorised by an officer of the
D
Vigilance Organisation not below the rank of ASP in terms of the second
proviso by way of a separate and reasoned order. It is submitted that the
authority conferred upon such officer of the Vigilance Organisation being
a statutory one, can neither be arbitrary nor unreasonable. Therefore,
the authorising officer while conferring authority upon a non-designated
investigating officer which in the instant case is an inspector has to grant E
the same by a special and a separate reasoned order. Section 3 is a
mandatory provision and the statutory obligations created under it must
be adhered to and any deviation from the same would render the entire
investigation void.
7.3 It is submitted that in the present case, there is no reasoned F
authorisation order for conferring special power of investigation upon
the inspector. It is submitted that such order cannot be a mechanical one
and thus has to reveal the reasons for deviating to an exceptional course
of investigation. It is submitted that absence of the reasons from the
order, if any, would also render the order as nullity. It is submitted that
G
therefore as a corollary, the investigation is also rendered void and
therefore the investigation in the instant case being unauthorised has
been rightly quashed by the High Court. In support of the above, heavy
reliance is placed on the decision of this Court in the case of Bhajan Lal
(supra) (paras 102 and 114 to 129).
H
882 SUPREME COURT REPORTS [2021] 10 S.C.R.
A 7.4 It is further submitted, relying upon Taylor v. Taylor, (1875)
1 Ch.D, 426, 431, where the law prescribes that a certain act must be
performed in a certain way, such act has to be performed in the specified
manner and not in any other manner. Reliance is also placed on the
decisions of the Indian Courts, (1) Nazir Ahmad v. The King Emperor,
AIR 1936 PC 253; and (2) State of Uttar Pradesh v. Singhara Singh,
B
(1964) 4 SCR 485.
7.5 It is submitted that Section 3 as a whole is required to be
considered, considering the nature of the offence to be investigated under
the PC Act. It is submitted that non-obstante clause with which Section
3 opens, the superior officer prescribed in the hierarchy who alone can
C investigate the offences under the PC Act as also the language of Section
3 and its provisos. It is submitted that the legislature appears to have
consciously noted that the allegations can be raised against persons in
very high positions, like the respondent herein who was a Director of
Health Services in the State and hence only Deputy Superintendent of
D Police can conduct an investigation unless specifically authorised by the
Magistrate or competent police officials.
7.6 It is further submitted that it is true and cannot be disputed
that a senior Superintendent of Police can authorise an inspector of police
under Section 3, but such authorisation must be valid, legal, proper and
E reasoned. It is submitted that in the present case in the absence of any
reasons while granting authorisation, there has been no proper
authorisation.
7.7 It is submitted that the second proviso to Section 3 insists on
“special authorisation in writing” and therefore such authorisation must
F give reasons and mere general and non-specific authorisation without
giving reasons will not be due compliance with the mandate of second
proviso to Section 3.
7.8 It is submitted by Shri R. Basant, learned Senior Advocate
appearing on behalf of the respondent that, as such, the aforesaid issue/
G question is squarely covered by the decision of this Court in the case of
Bhajan Lal (supra), wherein this Court interpreted second proviso to
Section 5A of the 1947 Act.
7.9 Now so far as declaring Rule 3.16 of the Vigilance Manual,
2008 dealing with the Preliminary Enquiry (PE) as ultra vires, it is
submitted that in the present case, the investigating agency before the
H
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 883
[M. R. SHAH, J.]
registration of an FIR had registered a Preliminary Verification (PE), A
during which the investigating agency examined the allegations in the
FIR on merits and examined (1) various communications of NRHM; (2)
communications of Directorate of Health Services, Srinagar as well as
Jammu; (3) guidelines issued by Ministry of Health and Family Welfare,
Government of India; (4) rates on which Drugs Kits were purchased
B
during the year 2009-2010; (5) the corrigendum issued by Director, Health
Services, Kashmir; and (6) the supplies were allegedly made by private
agencies from Indore and not by CPSEs.
7.10 It is submitted that in the FIR itself in para 8, it is stated that
on the basis of in-depth verification, the allegations against the respondent
are prima facie established. It is submitted that the scope of preliminary C
verification is not to examine the veracity of the allegations contained in
the complaint, but only to see whether a cognizable offence is made out
or not. It is submitted that the provisions of Cr.P.C. cannot be amplified
to such an extent which can enable the investigating agency to carry out
an in-depth analysis of a complaint while examining documents and D
formulating opinions.
7.11 It is submitted that there is no provision under the entire
Cr.P.C. granting authority upon the investigating agency to investigate
an offence prior to the registration of an FIR. Investigation commences
with the registration of the FIR and not otherwise under Preliminary E
Verification. It is submitted that in the case of Lalita Kumari (supra),
this Court has held that Preliminary Verification cannot be used to verify
the veracity of a complaint and that a Preliminary Verification cannot
exceed more than 7 days. This duration of 7 days would in any case
take a prospective effect because it does not interpret a provision of law
but lays down law. Therefore, registering the FIR on the basis of the F
information gathered during the illegal investigation launched under the
pretext of Preliminary Verification has to be quashed. It is submitted
therefore that the impugned FIR being an outcome of illegality is liable
to be quashed and the same has been rightly quashed by the High Court.
7.12 It is further submitted that in the instant case the investigating G
agency has verified the veracity of the information at great length for
over a year, as is evident from the contents of the FIR. It is submitted
that the veracity of a complaint or information can only be verified during
investigation, i.e., after the registration of the FIR. It is submitted that
the procedure enshrined under Section 154 Cr.P.C. is a mandatory one H
884 SUPREME COURT REPORTS [2021] 10 S.C.R.
A and the investigating agency is under an obligation to register an FIR on
receipt of information revealing cognizable offence. An exception to this
general principle of criminal law is recognised by this Court in the case
of Lalita Kumari (supra), whereby a preliminary verification is
permissible prior to the registration of FIR, with respect to cases related
to corruption, matrimonial disputes, economic offences etc. However,
B
the scope of the preliminary verification cannot be enlarged to an extent
whereby the veracity of a complaint or information can be verified. It is
submitted that the procedural safeguard contained in Section 154 is a
mandatory one and any violation thereof is not a mere irregularity but an
illegality which renders the registration of the subsequent FIR illegal.
C 7.13 It is submitted that in the case of Priyanka Srivastava v.
State of Uttar Pradesh, (2015) 6 SCC 287, FIR was registered on an
application filed under Section 156(3) Cr.P.C. The learned Magistrate
directed registration of the FIR. However, this Court has held the
requirements of Section 154 to be mandatory and in absence of which
D an application under Section 156(3) would not lie. It is submitted that
non-adherence of Section 154 rendered the application under Section
156(3) and the order passed by the learned Magistrate invalid. It is
submitted that the FIR which was registered pursuant to the order of the
learned Magistrate under Section 156(3) was also quashed for non-
adherence to Section 154. It is submitted that therefore adherence to a
E mandatory procedure under Section 154 cannot be said to be a mere
irregularity but an illegality which renders all the subsequent actions illegal.
It is submitted that in the present case, the investigation has been carried
out without registration of the FIR under the guise of Preliminary
Verification and giving a go-bye to the mandatory procedure required to
F be followed under Section 154 Cr.P.C.
7.14 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to dismiss the present appeal.
8. We have heard the learned senior counsel for the respective
parties at length.
G
At the outset, it is required to be noted that by the impugned
judgment and order and in exercise of its extra-ordinary jurisdiction, the
High Court has quashed the entire criminal proceedings and the FIR
against the respondent for the offences punishable under Sections 5(1)(d)
r/w 5(2) of the J&K PC Act, 2006 and Section 120B of the RPC. The
H High Court has also declared Rule 3.16 of the Vigilance Manual, 2008
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 885
[M. R. SHAH, J.]
dealing with the Preliminary Enquiry (PE) as ultra vires. While quashing A
the criminal proceedings, the High Court has also quashed the Entrustment
Order dated 16.11.2012 passed by the Senior Superintendent of Police,
VOK, Srinagar authorising the Inspector to investigate the offences,
which authorisation was in exercise of powers under the second proviso
to Section 3. The High Court framed the following questions:
B
a) Whether Section 3 of the Prevention of Corruption Act is a
mandatory provision and its non-adherence vitiates the
investigation?
b) Whether prior sanction of a Magistrate under Section 155
Jammu & Kashmir Cr.P.C. is mandatory for investigating C
cognizable offences along with non-cognizable?
c) Whether under the pretext of Preliminary Verification the
investigating agency can verify the veracity of a complaint
before registration of FIR?
d) Whether an offence like that of Criminal Conspiracy can D
be committed by a juridical person like a company?
8.1 Relying upon the decision of this Court in the case of Bhajan
Lal (supra), the High Court has observed and held that the authorisation
by the Senior Superintendent of Police, VOK, Srinagar authorising the
inspector Nisar Hussain to investigate the FIR for the offences under E
Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006, which as such was
in exercise of powers under the second proviso to Section 3 is void and
illegal as no reasons are assigned/given and the same is a non-reasoned
authorisation. It is required to be noted that in the case of Bhajan Lal
(supra), this Court had an occasion to consider Section 5A of the 1947 F
Act and in the present case Section 3 of J&K PC Act, 2006 is required
to be considered. Section 5A which fell for consideration before this
Court in the case of Bhajan Lal (supra) reads as under:
5-A. Investigation into cases under this Act. — (1)
Notwithstanding anything contained in the Code of Criminal
G
Procedure, 1898 (5 of 1898), no police officer below the rank, —
(a) in the case of the Delhi Special Police Establishment, of an
Inspector of Police;
(b) in the presidency towns of Calcutta and Madras, of an
Assistant Commissioner of Police; H
886 SUPREME COURT REPORTS [2021] 10 S.C.R.
A (c) in the presidency town of Bombay, of a Superintendent of
Police; and
(d) elsewhere, of a Deputy Superintendent of Police,
shall investigate any offence punishable under Section 161, Section
165 or Section 165-A of the Penal Code, 1860 or under Section 5
B of this Act without the order of a Presidency Magistrate or a
Magistrate of the first class, as the case may be, or make any
arrest therefor without a warrant:
Provided that if a police officer not below the rank of an
Inspector of Police is authorised by the State Government in this
C behalf by general or special order, he may also investigate any
such offence without the order of a Presidency Magistrate or a
Magistrate of the first class, as the case may be, or make arrest
therefor without a warrant:
Provided further that an offence referred to in clause (e) of
D sub-section (1) of Section 5 shall not be investigated without the
order of a police officer not below the rank of a Superintendent of
Police.”
8.2 The authority under which the investigating officer was
authorised to investigate the offences under Section 5A of the Act which
E fell for consideration before this Court reads as follows:
“Haryana Government,
Home Department,
order
F No. 4816-3H-75/22965 July 26, 1975
Conferred by the first proviso to sub-section (1) of Section 5-A of
the Prevention of Corruption Act, 1947, the Governor of Haryana
hereby authorises all the Inspectors of Police under the
administrative control of the Inspector General of Police, Haryana
G to investigate offences under Section 5 of the said Act.
S.D. Bhandari
Secretary to Government, Haryana
Home Department”
H
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 887
[M. R. SHAH, J.]
8.3 Section 3 of J&K PC Act, 2006, which is relevant for our A
purpose, reads as follows:
“3. Offences to be cognizable and non-bailable –
Notwithstanding anything to the contrary in the Code of Criminal
Procedure all offences punishable under this Act shall be cognizable
and non-bailable: B
Provided that no Police Officer below the rank of the Deputy
Superintendent of Police shall investigate any such offence without
the order of a Magistrate of the First Class or make any arrest
therefor without a warrant:
Provided further that if an officer of the Vigilance Organization C
of and above the rank of a Sub-Inspector of Police is specially
authorised in writing by an officer of the Vigilance Organization
not below the rank of an Assistant Superintendent of Police to
investigate such offence, such officer may investigate the offence
so specified in the order of authorization. But such officer shall D
not be competent to arrest any person during such investigation
unless a Police Officer not below the rank of a Deputy
Superintendent of Police authorizes such arrest under Section 56
of the Code of Criminal Procedure, Samvat 1989.”
8.4 The authorization in the present case authorising the inspector E
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, which
as such was in exercise of powers under the second proviso to Section
3 reads as follows:
“Investigation of Case FIR No. 32/2012 u/s 5(1)(d) r/w 5(2) J&K F
PC Act Svt. 2006 and Section 120-B RPC P/S Vigilance
Organization, Srinagar is hereby entrusted to Insp. Nisar Hussain
No. 4136/NGO. He is authorized u/s 3 PC Act, Svt. 2006 r/w
Section 56 of Cr.P.C. to arrest the accused person(s) whenever
and wherever necessary.
G
He will conduct investigation of the case under the supervision of
Superintendent of Police (BKB).”
Therefore, what was considered by this Court in the case of
Bhajan Lal (supra) was Section 5A of the 1947 Act and the authorization
referred to hereinabove. The wordings used in Section 3 of the J&K PC
H
888 SUPREME COURT REPORTS [2021] 10 S.C.R.
A Act, 2006 are altogether distinct and different and that of Section 5A of
the Prevention of Corruption Act, 1988 which fell for consideration before
this Court in the case of Bhajan Lal (supra). The observations and the
decision of this Court in the case of Bhajan Lal (supra) has been
considered and explained by this Court in the case of Ram Singh (supra)
in paragraphs 13 to 15 as under:
B
13. The investigation conducted and the consequent proceedings
are stated to have been quashed on similar grounds in Bhajan
Lal case [1992 Supp (1) SCC 335. The facts of that case were
one Dharam Pal presented a complaint against Ch. Bhajan Lal,
C the former Chief Minister of Haryana making certain serious
allegations against him which prima facie showed commission of
offence punishable under the Act. The complaint was presented
in the Chief Minister’s Secretariat on 12-1-1987 when the said
Shri Bhajan Lal had ceased to be the Chief Minister. An
endorsement was made by the Officer on Special Duty in the
D Chief Minister’s Secretariat to the effect: “CM has seen. For
appropriate action” and was marked to the Director General of
Police who in turn made endorsement on the same day which
read: “Please look into this; take necessary action and report”
and marked it to the Superintendent of Police, Hissar. The complaint
E along with the above endorsement of the OSD and the DGP was
put up before the SP on 21-11-1987 on which date the SP made
his endorsement reading “Please register a case and investigate”.
The Station House Officer of the police station registered a case
on the basis of the allegations in the complaint under Sections 161
and 165 of the Penal Code, 1860 and Section 5(2) of the Prevention
F of Corruption Act, 1947. After forwarding the copy of the first
information report to the Magistrate and other officers concerned,
the SHO took up the investigation and proceeded to the spot
accompanied by his staff. At this stage Shri Bhajan Lal filed Writ
Petition No. 9172 of 1987 under Articles 226 and 227 of the
G Constitution of India seeking quashing of the first information report
and issuance of directions restraining the police from further
proceeding with the investigation. The High Court held that
allegations made in the complaint do not constitute a cognizable
offence for commencing a lawful investigation and granted relief
as prayed for by the petitioner therein. Aggrieved by the aforesaid
H
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 889
[M. R. SHAH, J.]
judgment the State of Haryana preferred an appeal in this Court A
which was disposed of as under:
“We set aside the judgment of the High Court quashing the
first information report as not being legally and factually
sustainable in law for the reasons aforementioned; but, however,
we quash the commencement as well as the entire investigation, B
if any, so far done for the reasons given by us in the instant
judgment on the ground that the third appellant (SHO) is not
clothed with valid legal authority to take up the investigation
and proceed with the same within the meaning of Section 5-
A(1) of the Prevention of Corruption Act, as indicated in this
judgment. Further we set aside the order of the High Court C
awarding costs with a direction that the said costs are payable
to the first respondent (Ch. Bhajan Lal) by the second
respondent (Dharam Pal).
In the result, the appeal is disposed of accordingly but at the same
time giving liberty to the State Government to direct an investigation D
afresh, if it so desires, through a competent police officer
empowered with the valid legal authority in strict compliance with
Section 5-A(1) of the Act as indicated supra. No orders as to
costs.”
In the facts and circumstances of that case this Court posed a E
question to itself in the following terms:
“Now what remains for consideration is whether there is any
valid order of the SP permitting the third appellant to investigate
the offence falling under clause (e) of sub-section (1) of Section
5. As we have already mentioned in the earlier part of this judgment, F
the SP (the second appellant) has given the one-word direction on
21-11-1987 ‘investigate’. The question is whether the one-word
direction ‘investigate’ would amount to an ‘order’ within the
meaning of second proviso of Section 5-A (1).”
The Court found on facts that as there was absolutely no reason G
given by the SP in directing the SHO to investigate, the order of
the SP was directly in violation of the dictum of law. The SHO
was, therefore, found not clothed with the requisite legal authority
within the meaning of the second proviso to Section 5-A (1) of the
1947 Act to investigate the offences under clause (e) of Section
H
890 SUPREME COURT REPORTS [2021] 10 S.C.R.
A 5(1) of the Act. This Court held that (1) as the salutary legal
requirement of disclosing reason for according the permission is
not complied with, (2) as the prosecution is not satisfactorily
explaining the circumstances which impelled the SP to pass the
order directing the SHO to investigate the case, (3) as the said
direction manifestly seems to have been granted mechanically
B
and in a very casual manner, regardless of the principles of law
enunciated by this Court, and (4) as the SHO had got neither any
order from the Magistrate to investigate the offences under
Sections 161 and 165 IPC nor any order from the SP for
investigation of the offences under Section 5(1)(e) of the Prevention
C of Corruption Act in the manner known to law, the order of direction
reading only “investigate” suffered from legal infirmity. The Court
found that despite quashing the direction of the SP and the
investigation thereupon it would not, in any manner, deter the State
of Haryana from pursuing the matter and directing the investigation
afresh in pursuance of the FIR, if the State so desired.
D
14. It may be noticed at this stage that a three-Judge Bench of
this Court in H.N. Rishbud v. State of Delhi [AIR 1955 SC 196]
had held that a defect or illegality in investigation, however serious,
has no direct bearing on the competence or the procedure relating
to cognizance or trial. Referring to the provisions of Sections 190,
E 193, 195 to 199 and 537 of the Code of Criminal Procedure (1898)
in the context of an offence under the Prevention of Corruption
Act, 1947, the Court held:
“A defect or illegality in investigation, however serious, has no
direct bearing on the competence or the procedure relating to
F cognizance or trial. No doubt a police report which results from
an investigation is provided in Section 190 CrPC as the material
on which cognizance is taken. But it cannot be maintained that a
valid and legal police report is the foundation of the jurisdiction of
the court to take cognizance. Section 190 CrPC is one out of a
G group of sections under the heading ‘Conditions requisite for
initiation of proceedings’. The language of this section is in marked
contrast with that of the other sections of the group under the
same heading, i.e., Sections 193 and 195 to 199.
These latter sections regulate the competence of the court and
H bar its jurisdiction in certain cases excepting in compliance
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 891
[M. R. SHAH, J.]
therewith. But Section 190 does not. While no doubt, in one sense, A
clauses (a), (b) and (c) of Section 190(1) are conditions requisite
for taking of cognizance, it is not possible to say that cognizance
on an invalid police report is prohibited and is therefore a nullity.
Such an invalid report may still fall either under clause (a) or (b)
of Section 190(1), (whether it is the one or the other we need not
B
pause to consider) and in any case cognizance so taken is only in
the nature of error in a proceeding antecedent to the trial. To such
a situation Section 537 CrPC which is in the following terms is
attracted:
‘Subject to the provisions hereinbefore contained, no finding,
sentence or order passed by a court of competent jurisdiction C
shall be reversed or altered on appeal or revision on account of
any error, omission or irregularity in the complaint, summons,
warrant, charge, proclamation, order, judgment or other
proceedings before or during trial or in any inquiry or other
proceedings under this Code, unless such error, omission or D
irregularity, has in fact occasioned a failure of justice.’
If, therefore, cognizance is in fact taken, on a police report vitiated
by the breach of a mandatory provision relating to investigation,
there can be no doubt that the result of the trial which follows it
cannot be set aside unless the illegality in the investigation can be E
shown to have brought about a miscarriage of justice. That an
illegality committed in the course of investigation does not affect
the competence and the jurisdiction of the court for trial is well
settled as appears from the cases in — ‘Parbhu v. Emperor [AIR
1944 PC 73] and — ‘Lumbhardar Zutshi v. R. [AIR 1950 PC
26] “ F
It further held:
“In our opinion, therefore, when such a breach is brought to the
notice of the court at an early stage of the trial, the court will have
to consider the nature and extent of the violation and pass G
appropriate orders for such reinvestigation as may be called for,
wholly or partly, and by such officer as it considers appropriate
with reference to the requirements of Section 5-A of the Act. It is
in the light of the above considerations that the validity or otherwise
of the objection as to the violation of Section 5(4) of the Act has
H
892 SUPREME COURT REPORTS [2021] 10 S.C.R.
A to be decided and the course to be adopted in these proceedings,
determined.”
In Bhajan Lal case [1992 Supp (1) SCC 335] this Court had
found on facts that the SP had passed the order mechanically and
in a very casual manner regardless of the settled principles of
B law. The provisions of Section 17 of the Act had not been complied
with. As earlier noticed the SP while authorising the SHO to
investigate had made only an endorsement to the effect “Please
register the case and investigate”. The SP was shown to be not
aware either of the allegations or the nature of the offences and
the pressure of the workload requiring investigation by an Inspector.
C There is no denial of the fact that in cases against the respondents
in these appeals, even in the absence of the authority of the SP
the investigating officer was in law authorised to investigate the
offence falling under Section 13 of the Act with the exception of
one as is described under sub-section (1)(e) of the Act. After
D registration of the FIR the Superintendent of Police in the instant
appeals is shown to be aware and conscious of the allegations
made against the respondents, the FIR registered against them
and pending investigations. The order passed by the SP in the
case of Ram Singh on 12-12-1994 with respect to a crime
registered in 1992 was to the effect:
E
“In exercise of powers conferred by the provisions on me, under
Section 17 of the Prevention of Corruption Act, 1988, I, P.K.
Runwal, Superintendent of Police, Special Police Establishment,
Division I, Lokayukta Karyalaya, Gwalior Division, Gwalior (M.P.),
authorised Shri D.S. Rana, Inspector (SPE), Lak-Gwl (M.P.) to
F investigate Crime No. 103 of 1992 under Sections 13(1)(e), 23(2)
of the Prevention of Corruption Act, 1988 against Shri Ram Singh,
DO, Excise, Batul (M.P.).”
Similar orders have been passed in the other two cases as well.
The reasons for entrustment of investigation to the Inspector can
G be discerned from the order itself. The appellant State is, therefore,
justified in submitting that the facts of Bhajan Lal case [1992
Supp (1) SCC 335] were distinguishable as in the instant case the
Superintendent of Police appears to have applied his mind and
passed the order authorising the investigation by an Inspector under
H the peculiar circumstances of the case. The reasons for
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 893
[M. R. SHAH, J.]
entrustment of investigation were obvious. The High Court should A
not have liberally construed the provisions of the Act in favour of
the accused resulting in closure of the trial of the serious charges
made against the respondents in relation to commission of offences
punishable under an Act legislated to curb the illegal and corrupt
practices of the public officers. It is brought to our notice that
B
under similar circumstances the High Court had quashed the
investigation and consequent proceedings in a case registered
against Shri Ram Babu Gupta against which Criminal Appeal No.
1754 of 1986 was filed in this Court which was allowed on 27-9-
1986 by setting aside the order of the High Court with a direction
to the trial court to proceed with the case in accordance with law C
and in the light of the observations made therein.
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. D
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 authorise
a junior officer to investigate. The time between the registration
of the FIR and authorisation in terms of the second proviso to
Section 17 shows further the application of mind and the E
circumstances which weighed with the Superintendent of Police
to direct authorisation to order the investigation.”
8.5 Thereafter, having noticed that the order authorising the
investigating officer in exercise of powers under Section 17 of the
Prevention of Corruption Act, 1988 indicating the name of the accused, F
the number of the FIR, the nature of the offence and power of the
Superintendent of Police permitting him to authorise a junior officer to
investigate, the time between the registration of the FIR and the
authorisation in terms of second proviso to Section 17, this Court has
held such authorisation to be valid. G
8.6 In the present case also, it cannot be said that there was any
non-application of mind on the part of the Senior Superintendent of Police
authorising the inspector Nisar Hussain to enquire into the FIR for the
offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and
120-B of the Ranbir Penal Code. It is required to be noted that Inspector H
894 SUPREME COURT REPORTS [2021] 10 S.C.R.
A Nisar Hussain who was authorised to investigate the FIR for the aforesaid
offences was also authorised to arrest the accused persons whenever
and wherever necessary. It is also required to be noted that in the said
authorisation it has been specifically mentioned that he will conduct the
investigation of the case under the supervision of the Superintendent of
Police (BKB). Therefore, all precautions are taken by the Senior
B
Superintendent of Police authorising the Inspector Nisar Hussain to
investigate the FIR for the offences under the J&K PC Act, 2006.
Even otherwise, it is required to be noted 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
C 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
D 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
E 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. Therefore, as such, the High Court has committed a
grave error in quashing the entire criminal proceedings holding that
authorisation in favour of Inspector Nisar Hussain was bad in law, relying
F upon the observations made by this Court in the case of Bhajan Lal
(supra), which has been subsequently explained by this court in the
case of Ram Singh (supra). We are of the opinion that in the facts and
circumstances of the case and considering the authorisation read with
the second proviso to Section 3, authorisation cannot be said to be illegal
and/or invalid.
G
9. Now so far as the finding recorded by the High Court for non-
compliance of Section 155 of J&K Cr.P.C. is concerned, it is to be noted
that the High Court has 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
H
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 895
[M. R. SHAH, J.]
the investigation and in the present case no such sanction from the A
concerned Magistrate has been obtained is concerned, it is to be noted
that the substantive offences against the respondent herein were under
J&K PC Act, 2006 and as per Section 3 of the Act, all offences under
the Act are cognizable and non-bailable. As such, the aforesaid issue is
squarely covered against the respondent in view of the decision of this
B
Court in the case of Pravin Chandra Mody(supra). In paragraph 6, it
is observed and held as under:
“6. Section 156(2) provides that where a police officer enquires
into an offence under Section 156(1) his action cannot be called
into question on the ground that he was not empowered to
investigate the offence. The enquiry was an integrated one, being C
based on the same set of facts. Even if the offence under the
Essential Commodities Act may not be cognizable — though it is
not alleged by the appellant that it is non-cognizable — the police
officer would be competent to include it in the charge-sheet under
Section 173 with respect to a cognizable offence. In Ram Krishna D
Dalmia v. State [AIR (1958) Pb. 172], Falshaw, J (as he then
was) observed that the provisions of Section 155(1) of the Criminal
Procedure Code, must be regarded as applicable to those cases
where the information given to the police is solely about a non-
cognizable offence. Where the information discloses a cognizable
as well as a non-cognizable offence the police officer is not E
debarred from investigating any non-cognizable offence which
may arise out of the same facts. He can include that non-
cognizable offence in the charge-sheet which he presents for a
cognizable offence. We entirely agree. Both the offences if
cognizable could be investigated together under Chapter XIV of F
the Code and also if one of them was a non-cognizable offence.”
10. In the present case, 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 G
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.
H
896 SUPREME COURT REPORTS [2021] 10 S.C.R.
A Therefore, the High Court has erred in quashing the criminal proceedings
on the ground that as the offence under Section 120B which is a non-
cognizable, prior sanction as required under Section 155 of J&K Cr.P.C.
is not obtained. The view taken by the High Court is just contrary to the
law laid down by this Court in the case of Pravin Chandra Mody
(supra), which has been subsequently relied upon by this Court in the
B
cases of Brij Lal Palta (supra); Satya Narain Musadi (supra); Madan
Lal (supra); and Bhanwar Singh (supra).
11. The impugned judgment and order passed by the High Court
insofar as holding Rule 3.16 of the Vigilance Manual, 2008 as ultra
vires is concerned, it is required to be noted that even Rule 3.16 can be
C said to be in consonance with the observations and the law laid down by
this Court in the case of Lalita Kumari (supra). Rule 3.16 reads as
under:
“Clause 3.16 – Preliminary Enquiry (PE)
D When a complaint or information discloses adequate material
indicating misconduct on the part of public servant which needs a
detailed verification prior to registration of a case u/s 154 Cr.P.C.,
a Preliminary Enquiry (PE) can be ordered. A PE should normally
be completed in a period of six months. The PE will be registered
on a given proforma (Annexure K). Sometimes courts also order
E an enquiry by the State Vigilance Organisation. Such preliminary
enquiries should also be registered after approval of the
Commissioner of Vigilance. A PE may be converted into FIR,
with the prior concurrence of central office, as soon as sufficient
material becomes available to show that, prima facie, commission
F of a cognizable offence under Prevention of Corruption Act is
made out. When the material available indicates ingredients of
misconduct alone and not criminal misconduct, a self-contained
note should be sent to the appropriate disciplinary authority for
departmental action.”
12. On a close reading of Rule/Clause 3.16, it can be seen that
G
even 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,
H a detailed enquiry is required and therefore it is observed in Clause 3.16
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN 897
[M. R. SHAH, J.]
that a PE should be completed normally within a period of six months. It A
is the case on behalf of the respondent and even as observed and held
by the High Court in the impugned judgment and order as per the law
laid down by this Court in the case of Lalita Kumari (supra), 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
B
period of 7 days is concerned, 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.
13. So far as the submission on behalf of the respondent that in
the present case by conducting a Preliminary Enquiry, detailed C
investigation has been made and only thereafter the FIR is registered
and that at the time of Preliminary Enquiry, investigation is not permissible
since the FIR is lodged is concerned, the aforesaid submission seems to
be attractive but has no substance. While holding a Preliminary Enquiry
under Clause 3.16, whatever is conducted will be in the form of enquiry D
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 E
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, F
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 G
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. H
898 SUPREME COURT REPORTS [2021] 10 S.C.R.
A 14. Now so far as the 4th ground/question on which the High
Court has quashed the criminal proceedings, namely, the respondent
cannot be held vicariously liable in the absence of main conspirators –
Private Limited Companies and/or their in-charge persons is concerned,
it is to be noted that the allegations against the respondent are in respect
of his individual capacity. Besides the Directors of the Private Limited
B
Companies, respondent no.1 and other officials have been arrayed as an
accused. 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. The
C High Court has erred in quashing the entire criminal proceedings on the
aforesaid ground.
15. In view of the above and for the reasons stated above, the
impugned judgment and order passed by the High Court quashing the
entire criminal proceedings for the offences under Sections 5(1)(d) r/w
D 5(2) of the J&K PC Act, 2006 and 120B of the Ranbir Penal Code
arising out of FIR No. 32/2012 and quashing and setting aside the
Entrustment Order dated 16.11.2012 passed by the Senior Superintendent
of Police, VOK, Srinagar authorising the 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 Ranbir Penal Code and holding
E and declaring Rule/Clause 3.16 of the Vigilance Manual, 2008 dealing
with Preliminary Enquiry (PE) as ultra vires is unsustainable and deserves
to be quashed and set aside and is hereby quashed and set aside. FIR/
criminal proceedings against the respondent being FIR No., 32/2012 for
the offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006
F and 120B of the Ranbir Penal Code is to be investigated and proceeded
further by the authorised officer expeditiously.
16. The present appeal is allowed accordingly.
Devika Gujral Appeal allowed.
G
H
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