Aashray Chaudhary | Symbiosis Law School, Hyderabad | 10th December 2019

of the case

Through these Criminal appeals before the Apex court
the order date 24th December, 2018 passed by the High Court of
Judicature Hyderabad is being challenged by the State and by the accused.

The impugned order by the Hon’ble High Court was
passed as a result of petition of the Accused officer under Section 482 of CrPC
for quashing of the charge sheet filed on 9th October 2017. The
accused officer was charged with possession of assets worth Rs.3,18,61,500/-
alleged to be disproportionate to his know sources of income.

The High Court quashed the charge sheet, holding that
there was a lack of authorization to register the Crime under section 13(2) and
13(1)(e) of the Prevention of Corruption act, 1988 and that the informant (i.e.
the Deputy Superintendant of Police in this case) cannot be the Investigating
officer. (Para 5)

The appealed against the above two finding of the
Hon’ble High Court, whereas the Accused officer challenged the findings of the
High Court not accepting the grounds pressed by him in seeking the quashing of
the charge sheet – that there is no preliminary inquiry before the registration
of the Crime’ that there is no sanction and that there is a delay in the
completion of the investigation which has prejudiced the rights of the Accused

was held?

1.  Whether the Joint Director, Anti-Corruption
Bureau was discharging his duties as a Government servant or as a Contractual

The Apex court found a glaring irregularity in the
findings of the Hon’ble High Court. The High Court held that the Joint
Director, Anti-Corruption Bureau K Sampath Kumar was re-employed and his age of
Superannuation was extended without the Compliance of Article 16. Article 16
ensures equality of opportunity for all citizens in the matters relating to employment
to any office under the State. This would require the State to issue public
advertisement for filling of the office till an appropriate candidate is
appointed by the UPSC or the candidate should be put before the body authorised
under the relevant rules for his selection. Which was not proved to be complied
before the High Court and hence it held that the appointment of the Joint
Director was purely contractual and hence he cannot be called a government
servant. The Apex Court Stating Article 310 which states that all members of
the defence services or of the civil services and other posts connected to
defence or civil services under the Union holds office at the pleasure of the
President and under any State holds that office at the pleasure of the Governor.
It held that K Sampath Kumar was re-employed by the State Government in
exercise of the powers conferred under Article 162 of the Constitution of
India. It also held that there is no prohibition in any of the service rules
that there cannot be any re-employment of a person who was once in a civil
service. After being re-employed he was holding a civil post as his salary was
being paid from the state exchequer and was discharging duties in
responsibility in the Anti-corruption Bureau.

Thus the Supreme Court held that Sri K Sampath Kumar
was discharging his duties as Joint Director in the Anti-Corruption Bureau in
exercise of powers conferred by the State Government and thus was in fact a
Government Servant.

2.  Whether Joint Director
Anti-Corruption Bureau was within his powers to authorise the registration of
the case against the accuse officer?

 The Court held
that K. Sampath whilst discharging his duties as Joint Director,
Anti-corruption Bureau had full authority of the office he held. It held that
if the action taken by such officer is in public interest and not for his own
benefit then it will be taken to be valid.

The court based its findings on the de facto doctrine.
The doctrine basically says that a Judge is not a mere intruder or a usurper but
is one who holds the office under the colour of lawful authority. Which
essentially make the office the essence of the matter? Even though the
appointment of an officer may carry some defects, the actions taken by him are
in the name and power of the office and thus would carry the same power as if
there are no defects, unless such actions are unlawful.

3.  Whether an informant can be an
investigating officer in the same case?

 The Court found
that the Judgement in the case Mohan lal v State of Punjab on which the High
Court based its order on was held to be prospective in the Judgement in the
case of Varinder Kumar vs State of Himachal, the court in this case held that
there should be a balance in the rights of the accused and the prosecution and
the Criminal Justice system cannot be allowed to veer exclusively on the side
of the accused.

4. Whether preliminary inquiry before registration of a crime is mandatory?

The counsel appearing for the accused heavily relied
on the judgement reported as Lalita
Kumari v Government of Uttar Pradesh & Ors
. in which case it was laid
down that preliminary inquiry is warranted so as to avoid an abuse of the
process of law. Where the police officer is doubtful of the veracity of an
accusation, he has to conduct a preliminary inquiry. To which the court replied
that if the information given by informant discloses a cognizable offence
registration of an FIR is mandatory and no preliminary inquiry is permissible
in such a situation.

Preliminary inquiry is not a must in all cases and may be conducted pertaining to Matrimonial disputes/family disputes,
Commercial offences, Medical negligence cases and Corruption cases etc. The
Judgement of the Apex Court in Lalita Kumari 
case does not state that proceedings cannot be initiated against the
accused without conducting a preliminary inquiry.

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