THE STATE OF JAMMU & KASHMIR AND OTHERS versus DR. SALEEM UR REHMAN

[2021] 10 S.C.R.

ATHE STATE OF JAMMU & KASHMIR AND OTHERS

DR. SALEEM UR REHMAN

(Criminal Appeal No. 1170 of 2021)

BOCTOBER 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 Policeto the inspector to enquire into the FIR for the offences underCss.5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and s.120-B of theRanbir Penal Code, legality of – Requirement to give reasons in theauthorisation – Held: It cannot be said that there was non-application of mind on the part of the Senior Superintendent ofPolice authorising the inspector to enquire into the FIR for the statedDoffences – The inspector who was authorised to investigate the FIRfor the said offences was also authorised to arrest the accusedpersons whenever and wherever necessary – In the saidauthorisation, it was specifically mentioned that he will conduct theinvestigation of the case under the supervision of the Superintendentof Police – Therefore, all precautions were taken by the SeniorESuperintendent of Police authorising the Inspector to investigatethe FIR – Even otherwise, plain reading of the second proviso tos.3 shows that only two requirements are required to be satisfied,namely, (i) authorisation in writing by an officer of the VigilanceOrganisation not below the rank of Assistant Superintendent ofFPolice to an officer of not below the rank of Sub-Inspector of Policeto investigate such offences; and (ii) such officer authorised mayinvestigate the offences so specified in the order of authorisation –Therefore, as such, there is no requirement of giving either specialreasons nor there is requirement to mention reasons – What isrequired to be considered is whether there is an application of mindGwith respect to offences and the relevant provisions with respect toauthorisation – Considering the above authorisation, it cannot besaid that such authorisation authorising inspector to investigatethe FIR can be said to be vitiated and/or can be said to be voidwhich warrants quashing of the entire criminal proceedingsHincluding the FIR – Ranbir Penal Code – s.120-B.

J&K Prevention of Corruption Act, 2006: s.155 – Non-compliance of – By impugned order, High Court observed that foran investigating agency to investigate the group of offences whichinclude the non-cognizable one, it must obtain sanction from theconcerned Magistrate before launching the investigation and inthe instant case no such sanction from the concerned Magistratewas obtained – Propriety – Held: The substantive offences againstthe respondent were under J&K PC Act, 2006 and as per s.3 of theAct, all offences under the Act are cognizable and non-bailable –As such, the said issue is squarely covered against the respondentin view of the decision of this Court in the case of Pravin ChandraMody wherein it was held that where the information discloses acognizable as well as non-cognizable offence, the police officeris not debarred from investigating any non-cognizable offence whichmay arise out of the same facts and he can include that non-cognizable offence in the charge-sheet which he presents for acognizable offence – The offence under the Prevention of CorruptionAct is substantive offence and the investigation in respect of theoffence under the PC Act, when considered and coupled with theoffence of conspiracy, there is no requirement of prior sanction ofthe Magistrate – Merely because the offence of the conspiracy maybe involved, investigation into the offence under the PC Act whichis cognizable is not required to await sanction from the Magistrate,as that would lead to considerable delay and affect theinvestigation and it will derail the investigation – Therefore, theHigh Court erred in quashing the criminal proceedings on the groundthat the offence under s.120B is non-cognizable, prior sanctionas required under s.155 of J&K Cr.P.C. is not obtained.Vigilance Manual, 2008: Rule 3.16 – Validity of – closereading of Rule 3.16 showed that the same can be said to be in theinterest of the accused and/or person against whom the allegationsare made and to safeguard the accused against frivolous complaints– As per Clause 3.16 only after the Preliminary Enquiry is conductedand there is prima facie case found, an FIR is required to beregistered – Considering the nature of offences, detailed enquiryis required and therefore it is observed in Clause 3.16 that PEshould be completed normally within period of six months – Asper the law laid down in the case of Lalita Kumari, detailedinvestigation into the allegations on merits is not required by holding

APreliminary Enquiry and that such enquiry is to be completed withina period of seven days, however, it is not held that if the PreliminaryEnquiry is not completed within period of seven days, the entirecriminal proceedings would be void and the same are to be quashed– Rule 3.16 can be said to be in consonance with the observationsand the law laid down by this Court in the case of Lalita Kumari.B

Vigilance Manual, 2008: Rule 3.16 – While considering theprima facie case for the purpose of registering the FIR, some enquiry/investigation is bound to be there, however, the same shall be onlyfor the purpose of finding out prima facie case for the purpose ofregistration of the FIR only – Whatever enquiry is conducted at theCstage of Preliminary Enquiry, by no stretch of imagination, will beconsidered as investigation under the Code of Criminal Procedurewhich can only be after registration of the FIR – Even otherwise,merely because while holding Preliminary Enquiry detailedenquiry is made into the allegations made against the respondentDwhich can be said to be only for the purpose of finding out primafacie case for the purpose of registration of the FIR and merelybecause some more time is taken in conducting the PreliminaryEnquiry before registering the FIR, the entire criminal proceedingscannot be quashed – There shall not be any prejudice caused to theaccused at the stage of holding Preliminary Enquiry which shallEonly be for the purpose of satisfying whether any prima facie caseis made out with respect to the allegations made in the complaintwhich requires further investigation after registering the FIR or not– Therefore, the High Court has materially erred in holding anddeclaring Clause 3.16 as ultra vires.F

Liability: Vicariously liability of respondent in the absence ofmain conspirators – Allegations against the respondent are in respectof his individual capacity – Therefore, there is no question of anyvicarious liability.

Allowing the appeal, the Court

HELD: 1.1 It cannot be said that there was any non-application of mind on the part of the Senior Superintendent ofPolice authorising the inspector ‘NH’ to enquire into the FIR forthe 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’ whoH

was authorised to investigate the FIR for the said offences wasalso authorised to arrest the accused persons whenever andwherever necessary. In the said authorisation, it was specificallymentioned that he will conduct the investigation of the case underthe supervision of the Superintendent of Police (BKB). Therefore,all precautions are taken by the Senior Superintendent of Policeauthorising the Inspector ‘NH’ to investigate the FIR for theoffences 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) SCC335 : [1990] 3 Suppl. SCR 259; State of M.P. v. RamSingh (2000) 5 SCC 88: [2000] 1 SCR 579 – reliedon.

1.2 Even otherwise, plain reading of the second provisoto Section 3 showed that only two requirements are required tobe satisfied, namely, (i) authorisation in writing by an officer ofthe Vigilance Organisation not below the rank of AssistantSuperintendent of Police to an officer of not below the rank ofSub-Inspector of Police to investigate such offences; and (ii) suchofficer authorised may investigate the offences so specified inthe order of authorisation. Therefore, as such, there is norequirement of giving either special reasons or there is norequirement to mention reasons. What is required to beconsidered is whether there is an application of mind with respectto offences and the relevant provisions with respect toauthorisation. Considering the above authorisation, it cannot besaid that such authorisation authorising Inspector ‘NH’ toinvestigate the FIR for the offences under Sections 5(1)(d) r/w5(2) of the J&K PC Act, 2006 and 120B of the RPC can be saidto be vitiated and/or can be said to be void which warrants quashingof the entire criminal proceedings including the FIR. Therefore,as such, the High Court has committed grave error in quashingthe entire criminal proceedings holding that authorisation in favourof Inspector ‘NH’ was bad in law, relying upon the observationsmade by this Court in the case of Bhajan Lal, which has beensubsequently explained by this court in the case of Ram Singh. Inthe facts and circumstances of the case and considering theauthorisation read with the second proviso to Section 3,

Aauthorisation 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 Courtfor non-compliance of Section 155 of J&K Cr.P.C. is concerned,the High Court has observed that for an investigating agency toBinvestigate the group of offences which include the non-cognizableone, it must obtain sanction from the concerned Magistratebefore launching the investigation and in the present case nosuch sanction from the concerned Magistrate was obtained, thesubstantive offences against the respondent were under J&KPC Act, 2006 and as per Section 3 of the Act, all offences underCthe Act are cognizable and non-bailable. As such, the aforesaidissue is squarely covered against the respondent in view of thedecision 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 PradeshD[1965] 1 SCR 269 – relied on.

2.2 In the instant case, the offence under the Prevention ofCorruption Act is substantive offence and the investigation inrespect of the offence under the PC Act, when considered andcoupled with the offence of conspiracy, there is no requirementEof prior sanction of the Magistrate. Merely because the offenceof the conspiracy may be involved, investigation into thesubstantive offence, i.e., in the present case, offence under thePC Act which is cognizable is not required to await sanctionfrom the Magistrate, as that would lead to considerable delayFand affect the investigation and it will derail the investigation.Therefore, the High Court has erred in quashing the criminalproceedings on the ground that as the offence under Section120B which is non-cognizable, prior sanction as required underSection 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 tobe in consonance with the observations and the law laid down bythis Court in the case of Lalita Kumari. close reading of Rule/Clause 3.16 showed that even the same can be said to be in theinterest of the accused and/or person against whom theH

allegations are made and to safeguard the accused againstfrivolous complaints. As per Clause 3.16 only after the PreliminaryEnquiry is conducted and there is prima facie case found, anFIR is required to be registered. Considering the nature ofoffences, detailed enquiry is required and therefore it isobserved in Clause 3.16 that PE should be completed normallywithin period of six months. It is the case on behalf of therespondent and even as observed and held by the High Court inthe impugned judgment and order as per the law laid down bythis Court in the case of Lalita Kumari, detailed investigationinto the allegations on merits is not required by holdingPreliminary Enquiry and that such enquiry is to be completedwithin period of 7 days is concerned, it is to be noted that in thecase of Lalita Kumari, it is not held that if the Preliminary Enquiryis not completed within period of 7 days, the entire criminalproceedings would be void and the same are to be quashed.[Paras 11, 12][896-C, G-H; 897-A-B]

Lalita Kumari v. Government of Uttar Pradesh AIR 2014SC 187 : 2014 (2) SCC 1: [2013] 14 SCR 713; State ofPunjab v. Brij Lal Palta [1969] 1 SCR 853; SatyaNarain 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– relied on.

4.1 While holding Preliminary Enquiry under Clause 3.16,whatever is conducted will be in the form of enquiry into theallegations to consider whether any prima facie case is made outwhich requires further investigation after registering the FIR.While considering the prima facie case for the purpose ofregistering the FIR, some enquiry/investigation is bound to bethere, however, the same shall be only for the purpose of findingout prima facie case for the purpose of registration of the FIRonly. Whatever enquiry is conducted at the stage of PreliminaryEnquiry, by no stretch of imagination, will be considered asinvestigation under the Code of Criminal Procedure which canonly be after registration of the FIR. Even otherwise, merelybecause while holding Preliminary Enquiry detailed enquiry

Ais made into the allegations made against the respondent whichcan be said to be only for the purpose of finding out prima faciecase for the purpose of registration of the FIR and merely becausesome more time is taken in conducting the Preliminary Enquirybefore registering the FIR, the entire criminal proceedings cannotbe quashed. There shall not be any prejudice caused to theBaccused at the stage of holding Preliminary Enquiry which shallonly be for the purpose of satisfying whether any prima facie caseis made out with respect to the allegations made in the complaintwhich requires further investigation after registering the FIR ornot. Therefore, the High Court has materially erred in holdingCand declaring Clause 3.16 as ultra vires. [Para 13][897-D-H]4.2 Now so far as the 4[th] ground/question on which the HighCourt has quashed the criminal proceedings, namely, therespondent cannot be held vicariously liable in the absence ofmain conspirators – Private Limited Companies and/or their in-Dcharge persons is concerned, it is to be noted that the allegationsagainst 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 anaccused. Therefore, there is no question of any vicarious liabilityand the observations made by the High Court that in absence ofEmain conspirators – Private Limited Companies and/or their in-charge persons, respondent no.1 cannot be held liable isunsustainable and cannot be accepted. The High Court has erredin quashing the entire criminal proceedings on the aforesaidground. [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; OryxFisheries Pvt. Ltd. v. Union of India (2010) 13 SCC427 : [2010] 13 SCR 234; Special Land AcquisitionGOfficer, Bombay v. Godrej & Boyce (1988) 1 SCC 50 :[1988] 1 SCR 590; Indian National Congress v. Instituteof Social Welfare (2002) 5 SCC 685 : [2002] 3SCR 1040; Nazir Ahmad v. The King Emperor AIR 1936PC 253; State of Uttar Pradesh v. Singhara Singh

[1964] 4 SCR 485; Priyanka Srivastava v. State of UttarPradesh (2015) 6 SCC 287 : [2015] 4 SCR 108 –referred to.

Taylor v. Taylor (1875) 1 Ch.D, 426, 431– referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1170 of 2021.

From the Judgment and Order dated 07.05.2018 of the High Courtof Jammu and Kashmir at Srinagar in OWP No.1961 of 2015.

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 KumarSingh, Bineesh K., Advs. for the Respondent.

872SUPREME COURT REPORTS

AThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand 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 CourtBin exercise of its extra-ordinary jurisdiction has quashed the criminalproceedings being FIR No. 32/2012 and has declared Rule 3.16 of theVigilance Manual, 2008 dealing with the Preliminary Enquiry (PE) beingin direct conflict with the Constitution Bench Judgment of this Court inthe case of Lalita Kumari v. Government of Uttar Pradesh, reportedCin AIR 2014 SC 187 = 2014 (2) SCC 1, and consequently has declaredthe same ultra vires, the State has preferred the present appeal.

2. That an FIR being FIR No. 32/2012, Police Station, VOK wasregistered against the respondent herein under Section 5(1)(d) r/w 5(2)of the J&K Prevention of Corruption Act, 2006 (hereinafter referred toDas the ‘J&K PC Act, 2006’) and Section 120B of the Ranbir PenalCode (hereinafter referred to as the ‘RPC’) alleging inter alia that during2010-11, the Director Health Services, Kashmir along with the otheraccused persons misappropriated the huge amount of government moneyby way of effecting purchases of sub-standard medical kits under NationalRural Health Mission (NRHM) at highly exorbitant rates and in violationEof the conditions of supply orders placed by the department. It wasalleged against the respondent as under:

i)The respondent herein purchased various drug kits underNRHM Scheme from 4 CPSEs through limited tender andall the 4 CPSEs surprisingly quoted same rates. It wasFdecided to place supply orders to the tune of 25% fromeach of the CPSEs.

ii)The quoted rates by the 4 CPSEs were far in excess whencompared to rates on which purchases had been affectedduring previous year. The Respondent herein wilfully ignoredGthe rates at which the same kind of drug kits were purchasedby the department from private companies as per ratecontract dated 28-03-2009 valid for one year approved byRate Contract Committee No.1 of Health & MedicalEducation whereby the rates of drug kits were far less thanas quoted by the 4 CPSEs, the comparison is as under: -H

It is pertinent to point out that the Respondent herein hadfull knowledge of approved rates of drug kits valid for year2009-10, as he was then posted as Assistant Director, FamilyWelfare & Reproductive Child Health Care and wasDdesignated as member of Sub-Committee of PurchaseCommittee No.1 which approved the rates for the year2009-10.

iii)No market survey was conducted to ascertain thegenuineness of rates quoted by the firms nor any negotiationswere done to ensure that Government exchequer was notput to any loss etc during the year 2010-11.

iv)No samples of drug kits were obtained to verify the qualitycontrol check over packing & Packaging of medicines andkits.

v)The Respondent herein purchased NRHM kits not fromthe original manufacture but from suppliers at exorbitantrates.

vi)The purchased kits and the medicines were not of requiredstandard. Further maximum drugs/items constituting thethree types of kits were actually been manufactured byprivate agencies and not by the CPSEs themselves or bytheir subsidiaries as result of which undue benefit hasaccrued to the private agencies under the garb of PPP,which was never the intent of it.

874SUPREME COURT REPORTS

Avii)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 threementioned drug kits were not figuring in 102 listed drugsBunder PPP.

viii)As per the guidelines of GOI, the rates of drugs constitutingthe drug kits should be as per rates fixed by National PharmaPricing Authority with discount of up to 35%. It is pertinentto point out that the purchasing department did not seekCany rate list of NPPA or rate analysis from the supplierCPSEs to ascertain whether the rates quoted are actuallyas certified by NPPA and further to see whether discountup to 35% has been given on such rates.

ix)All the 4 CPSEs raised objection to the condition laid downDin Clause No.02 of the Supply Orders wherein it was statedthat all the drugs and items should be manufactured by thefirm itself and no drug/item will be accepted manufacturedby any other concern. The Respondent herein issuedcorrigendum thereby modifying the earlier order whichEconveyed that the items can be purchased from othersources also and thus the already purchased substandarditems were passed by the New Board, thereby causing aloss of Rs. 1,04,99,429/- to the State exchequer.

3. The respondent-accused approached the High Court by wayFof O.W.P. No. 1961/2015 invoking its extra-ordinary jurisdiction to quashthe aforesaid criminal proceedings, raising the following questions:

a)Whether Section 3 of the Prevention of Corruption Act is amandatory provision and its non-adherence vitiates theinvestigation?

Gb)Whether prior sanction of Magistrate under Section 155Jammu & Kashmir Cr.P.C. is mandatory for investigatingcognizable offences along with non-cognizable?

c)Whether under the pretext of Preliminary Verification theinvestigating agency can verify the veracity of complaintHbefore registration of FIR?

d)Whether an offence like that of Criminal Conspiracy canbe committed by juridical person like company?

Heavy reliance was placed on the decision of this Court in thecase of State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335 aswell as the decision of this Court in the case of Lalita Kumari (supra).

4. By the impugned judgment and order, the High Court hasquashed the entire criminal proceedings initiated against the respondentfor the aforesaid offences by holding that:

(1)there is non-compliance of the mandatory provision underSection 3 of the J&K PC Act, 2006 inasmuch as no specialand separate reasoned order was passed by the authorisingofficer while conferring authority on non-designatedofficer as per second proviso to Section 3;

(2)prior sanction of the Magistrate for the offence underSection 120B as required under Section 155 of the J&KCr.P.C. was not obtained;

(3)there was delay in conducting the preliminary verificationand by holding the preliminary verification the authorityentered into the domain of investigation which is notpermissible as held by this Court in the case of LalitaKumari (supra); and

(4)the allegations made in the FIR even if accepted to be truein its entirety are legally not tenable.

4.1 Holding above, the High Court has quashed the preliminaryverification No. 34/2011, FIR No. 32/2012, Police Station, VigilanceOrganisation Kashmir and the resultant investigation of the FIR. TheHigh Court has also quashed the Entrustment Order dated 16.11.2012passed by the Senior Superintendent of Police, VOK, Srinagar authorisingthe investigating officer to investigate the case/offences. The High Courthas also declared Rule 3.16 of the Vigilance Manual, 2008 dealing withPreliminary Enquiry (PE) as ultra vires on the ground that the same is indirect conflict with the decision of this Court in the case of Lalita Kumari(supra).

5. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the State of Jammu & Kashmir haspreferred the present appeal.

A6. Shri R. Venkataramani, Learned Senior Advocate has appearedon behalf of the appellants and Shri R. Basant, Learned Senior Advocatehas appeared on behalf of the respondent.

6.1 Shri R. Venkataramani, Learned Senior Advocate appearingon behalf of the State has vehemently submitted that in the facts andBcircumstances of the case, the High Court has committed grave errorin quashing the entire criminal proceedings including the FIR and eventhe 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 questionCno. 1, whether Section 3 of the Prevention of Corruption Act is amandatory provision and its non-adherence vitiates the investigation isconcerned, it is submitted that the conclusions drawn by the High Courtare in disregard of the relevant provisions of the J&K PC Act, 2006 andthe J&K Cr.P.C.

D6.3 It is submitted that the reliance placed on the decision of thisCourt in the case of Bhajan Lal (supra) is absolutely misconceived. Itis submitted that in Bhajan Lal’s case, Sections 3 & 5A of thePrevention of Corruption Act, 1947 (hereinafter referred to as the ‘1947Act’), 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 theEprosecution in question was initiated does not correspond either to Section3 or Section 5A of the 1947 Act. It is submitted that J&K PC Act, 2006does not contain provision corresponding to Section 5A of the 1947Act.6.4 It is submitted that the High Court has not properly appreciatedFthe fact that the reasoning adopted in Bhajan Lal’s case on requirementof 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 issubmitted that the Court has treated the requirement of giving reasonsby Magistrate in the context of giving permission to non-designatedGofficer to conduct investigation, and the administrative function ofdelegation of function of investigation by superior police officer to asubordinate police officer, as comparable. It is submitted that in view ofthe fact that Section 3 of the J&K PC Act, 2006 with its own specialscheme of delegation enacted in the second proviso to Section 3, relianceon Bhajan Lal’s case which was with reference to Section 5A of theH1947 Act is absolutely misconceived.

[M. R. SHAH, J.]

6.5 It is further submitted that as such the decision of this Court inthe case of Bhajan Lal (supra) has been subsequently explained bythis 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 theSuperintendent of Police authorising the Inspector to investigate theoffence under the Prevention of Corruption Act, 1988 indicating the nameof the accused, number of the FIR, the nature of the offence and thepower of the Superintendent of Police permitting him to authorise juniorofficer to investigate, the same is held to be valid authorisation. It issubmitted that in the aforesaid decision, this Court has distinguished thedecision of this Court in the case of Bhajan Lal (supra). It is submittedthat therefore the subsequent decision of this Court in the case of RamSingh (supra) will squarely apply to the facts of the case in hand.

6.6 It is submitted that authorisation in the present case by theSenior Superintendent of Police, Vigilance Organisation is clearly coveredby and falls within the scope of the second proviso to Section 3. It issubmitted that the High Court has not adverted to the distinct features ofthe second proviso to Section 3. It is submitted that the second provisodoes not demand the requirement of giving reasons for conferring authorityon non-designated officer to conduct investigation.

6.7 It is further submitted that unlike discharge of functions, judicialor quasi-judicial in nature, an administrative authority is not obliged togive reasons in the discharge of all its functions. It is submitted that thesecond proviso to Section 3 has been enacted for administrativeconvenience and for expeditious investigation. It is submitted that in thevery nature of such functions, it can be presumed that the reasons neednot be given for authorising an officer of vigilance organisation to conductinvestigation. In support of above, reliance is placed on the decisions ofthis Court in the cases of S.N. Mukherjee v. Union of India, (1990) 4SCC 594; Union of India v. E.G. Nambudiri, (1991) 3 SCC 38 andOryx Fisheries Pvt. Ltd. v. Union of India, (2010) 13 SCC 427.

6.8 It is submitted that therefore the requirement of giving reasonsfor the authorisation referred to in the second proviso to Section 3 ismisconceived. Firstly, the proviso itself does not contemplate the givingof reasons for the authorisation of power to investigate and secondly,the power to authorise being purely administrative based on expediencyand public policy, no reasons need to be given. It is submitted that thematter of delegation of the power to investigate upon non-designated

Aofficer, 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 hierarchyof appellate or revisional power, reasons may be required to be givenand not otherwise. Reliance is placed on the decisions of this Court inBthe cases of Special Land Acquisition Officer, Bombay v. Godrej &Boyce, (1988) 1 SCC 50 and Indian National Congress v. Instituteof Social Welfare, (2002) 5 SCC 685.

6.9 Now so far as question no.2, whether prior sanction of aMagistrate under Section 155 of the J&K Criminal Procedure Code isCmandatory for investigating cognizable offences along with non-cognizableoffences is concerned, it is submitted that the High Court has comparedSection 155 of the J&K Cr.P.C. and Section 155 of the Cr.P.C., 1973. Itis submitted that particular reference has been made to sub-section(4) of Section 155 of the Cr.P.C., 1973. It is submitted that the High

DCourt by holding that the J&K Cr.P.C. does not have in Section 155 aprovision comparable to sub-section (4) of Section 155 of the Cr.P.C.,1973, has reached the conclusion that in the absence of valid sanctionby the Magistrate as provided under Section 155 of the J&K Cr.P.C.,the investigation is illegal.

E6.10. It is submitted that the aforesaid issue is squarely covered infavour of the State in view of the decision of this Court in the case ofPravin Chandra Mody v. State of Andhra Pradesh, 1965 (1) SCR269 (para 6).

6.11 Learned Senior Advocate appearing on behalf of the StateFhas also taken us to the legislative history behind Section 155(4) and the37[th] Report of the Law Commission regarding investigation of cognizableoffence in the company of non-cognizable offence, particularly therequirement of obtaining an authorisation from the Magistrate. It issubmitted that pursuant to the 41[st] Report of the Law Commission, sub-section (4) was inserted in Section 155 Cr.P.C. It is submitted that asGobserved in the 37[th] Report, the law has already been laid down by thisCourt in the case of Pravin Chandra Mody (supra) and what wasrequired to be done was only to enact provision on the lines of PravinChandra Mody (supra). It is submitted that decision of this Court inthe case of Pravin Chandra Mody (supra) has been consideredHsubsequently by this Court in the cases of 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 SCR439; and Bhanwar Singh v. State of Rajasthan, (1968) 2 SCR 528.

6.12 It is submitted that the issue as to whether an investigation inrespect of offences under the Prevention of Corruption Act, when coupledwith the offence of conspiracy should always be subject to prior sanctionby the Magistrate, has to be seen from the perspective that merelybecause the offence of conspiracy may be involved, investigation intothe substantive offences which are cognizable should await sanctionfrom the Magistrate, as that would lead to considerable delay anduncertainty in the threshold investigation steps. It does not matter thatthe offence of conspiracy under Section 120B is also treated as asubstantive offence.

6.13 It is submitted that if the view taken by the High Court iscorrect law, it will be in the case of investigation under every specialstatute where the offences are cognizable, link with 120B of conspiracyoffence will derail all such investigations and lead to delay.

6.14 Now so far as question no.3, namely, whether under thepretext of preliminary verification, the investigating agency can verifythe veracity of complaint before registration of FIR and the observationsand the findings recorded by the High Court that Rule 3.16 of J&KVigilance Manual, 2008 is in direct conflict with the judgment of thisCourt in the case of Lalita Kumari (supra) is concerned, it is submittedthat the view taken by the High Court is absolutely misconceived. It issubmitted that Lalita Kumari (supra) takes note of special procedureto be followed in the cases of special statutes. Sections 4 & 5 of theCode of Criminal Procedure, 1973 have also been noticed by the HighCourt. Having regard to the wide spectrum of statutory offences to beinvestigated under ever increasing special statutes, it would be unwiseto thwart the investigation and the prosecution on the touchstone ofirregularities, if any, in the conduct of preliminary investigations andregistrations of FIR. It is submitted that Rule 3.16 of the VigilanceManual, 2008 is well-drawn scheme fitting in squarely with theprovisions of Sections 4 & 5 of the Cr.P.C., 1973.

6.15 It is further submitted that in the very nature of the investigationof such offences as the instant case which may involve not only collectionof documentary evidence but other preliminary statements to be obtainedfor the purpose of investigation, in order to rule out the absence of

Acommission of any offence, time will necessarily be consumed. It mayalso become inevitable that materials so collected become part of theinvestigation as well, which may be of considerable guidance in the courseof investigation. It is submitted that Lalita Kumari (supra) does notconfer any right on the accused to seek declaration of illegality incases of irregularity in the conduct of preliminary enquiry. It is submittedBthat no accused who is otherwise prima facie guilty of commission ofoffence can walk free from prosecution and punishment if they areotherwise due. It is submitted that ultimately the test to be applied willbe, whether there is failure or miscarriage of justice. It is submittedthat instead of applying the above-said principles, the High Court hasCunduly intervened and has erred in quashing the prosecution.

6.16 Now so far as the conclusions drawn under question no.4are contrary to the record of the case. It is submitted that besides theDirectors of Private Limited Company, respondent no.1 and other officialshave been arrayed as the accused. It was not necessary that any personDin the State NRHM machinery should have been suspected and treatedas co-conspirators. It is submitted that according to the investigation, theconduct of respondent no.1 and other officials accused in the course ofthe Tender Process for purchase of the material in question, alone becamesuspect events. It is submitted that therefore the High Court hascommitted grave error in quashing the prosecution, holding questionEno.4 against the State.6.17 Making the above submissions and relying upon the aforesaiddecision, it is prayed to allow the present appeal.

7. The present appeal is vehemently opposed by Shri R. Basant,Flearned Senior Advocate appearing on behalf of the respondent. It issubmitted that in the facts and circumstances of the case and on trueinterpretation of Section 3 of J&K PC Act, 2006 and in the absence ofprior sanction of the Magistrate under Section 155 of the J&K Cr.P.C.,the High Court has rightly quashed the criminal proceedings initiatedagainst the respondent.G

7.1 It is submitted that the High Court has rightly observed thatunder the pretext of the Preliminary Enquiry (PE), the investigating agencycannot go in detail and verify the veracity of the complaint beforeregistration of an FIR. It is submitted that therefore the High Court hasrightly declared Rule 3.16 of the Vigilance Manual, 2008 dealing withHPreliminary Enquiry as ultra vires.

7.2 It is submitted that the investigation under the J&K PC Act,2006 is controlled by Section 3 of the Act and as such carries non-obstante clause which precludes the procedure under Cr.P.C. It issubmitted that amended section makes all the offences under the PCAct cognizable. It is submitted that Section 3 contains two provisos,which in fact create an embargo on the mode of investigation. As perthe first proviso, inter alia, no police officer below the rank of DSP shallinvestigate any offence under the Act without the order of the Magistrate.The second proviso creates an exception to the condition provided in thefirst proviso and as per the second proviso, an officer of the VigilanceOrganisation of and above the rank of Sub-Inspector of Police mayinvestigate such offences but if specially authorised in writing by anofficer of the Vigilance Organisation not below the rank of AssistantSuperintendent of Police. It is submitted that in the instant case theinvestigation of the FIR under challenge was entrusted to Inspector NisarHussain. This officer being non-designated officer for the purpose ofSection 3, therefore, must be specially authorised by an officer of theVigilance Organisation not below the rank of ASP in terms of the secondproviso by way of separate and reasoned order. It is submitted that theauthority conferred upon such officer of the Vigilance Organisation beinga statutory one, can neither be arbitrary nor unreasonable. Therefore,the authorising officer while conferring authority upon non-designatedinvestigating officer which in the instant case is an inspector has to grantthe same by special and separate reasoned order. Section 3 is amandatory provision and the statutory obligations created under it mustbe adhered to and any deviation from the same would render the entireinvestigation void.

7.3 It is submitted that in the present case, there is no reasonedauthorisation order for conferring special power of investigation uponthe inspector. It is submitted that such order cannot be mechanical oneand thus has to reveal the reasons for deviating to an exceptional courseof investigation. It is submitted that absence of the reasons from theorder, if any, would also render the order as nullity. It is submitted thattherefore as corollary, the investigation is also rendered void andtherefore the investigation in the instant case being unauthorised hasbeen rightly quashed by the High Court. In support of the above, heavyreliance is placed on the decision of this Court in the case of Bhajan Lal(supra) (paras 102 and 114 to 129).

ABC

A7.4 It is further submitted, relying upon Taylor v. Taylor, (1875)1 Ch.D, 426, 431, where the law prescribes that certain act must beperformed in certain way, such act has to be performed in the specifiedmanner and not in any other manner. Reliance is also placed on thedecisions 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 whole is required to beconsidered, considering the nature of the offence to be investigated underthe PC Act. It is submitted that non-obstante clause with which Section3 opens, the superior officer prescribed in the hierarchy who alone canCinvestigate the offences under the PC Act as also the language of Section3 and its provisos. It is submitted that the legislature appears to haveconsciously noted that the allegations can be raised against persons invery high positions, like the respondent herein who was Director ofHealth Services in the State and hence only Deputy Superintendent ofDPolice 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 disputedthat senior Superintendent of Police can authorise an inspector of policeunder Section 3, but such authorisation must be valid, legal, proper andEreasoned. It is submitted that in the present case in the absence of anyreasons while granting authorisation, there has been no properauthorisation.

7.7 It is submitted that the second proviso to Section 3 insists on“special authorisation in writing” and therefore such authorisation mustFgive reasons and mere general and non-specific authorisation withoutgiving reasons will not be due compliance with the mandate of secondproviso to Section 3.

7.8 It is submitted by Shri R. Basant, learned Senior Advocateappearing on behalf of the respondent that, as such, the aforesaid issue/Gquestion is squarely covered by the decision of this Court in the case ofBhajan Lal (supra), wherein this Court interpreted second proviso toSection 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 issubmitted that in the present case, the investigating agency before theH

registration of an FIR had registered Preliminary Verification (PE),during which the investigating agency examined the allegations in theFIR on merits and examined (1) various communications of NRHM; (2)communications of Directorate of Health Services, Srinagar as well asJammu; (3) guidelines issued by Ministry of Health and Family Welfare,Government of India; (4) rates on which Drugs Kits were purchasedduring the year 2009-2010; (5) the corrigendum issued by Director, HealthServices, Kashmir; and (6) the supplies were allegedly made by privateagencies from Indore and not by CPSEs.

7.10 It is submitted that in the FIR itself in para 8, it is stated thaton the basis of in-depth verification, the allegations against the respondentare prima facie established. It is submitted that the scope of preliminaryverification is not to examine the veracity of the allegations contained inthe complaint, but only to see whether cognizable offence is made outor not. It is submitted that the provisions of Cr.P.C. cannot be amplifiedto such an extent which can enable the investigating agency to carry outan in-depth analysis of complaint while examining documents andformulating opinions.7.11 It is submitted that there is no provision under the entireCr.P.C. granting authority upon the investigating agency to investigatean offence prior to the registration of an FIR. Investigation commenceswith the registration of the FIR and not otherwise under PreliminaryVerification. It is submitted that in the case of Lalita Kumari (supra),this Court has held that Preliminary Verification cannot be used to verifythe veracity of complaint and that Preliminary Verification cannotexceed more than 7 days. This duration of 7 days would in any casetake prospective effect because it does not interpret provision of lawbut lays down law. Therefore, registering the FIR on the basis of theinformation gathered during the illegal investigation launched under thepretext of Preliminary Verification has to be quashed. It is submittedtherefore that the impugned FIR being an outcome of illegality is liableto 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 investigatingagency has verified the veracity of the information at great length forover year, as is evident from the contents of the FIR. It is submittedthat the veracity of complaint or information can only be verified duringinvestigation, i.e., after the registration of the FIR. It is submitted thatthe procedure enshrined under Section 154 Cr.P.C. is mandatory one

Aand the investigating agency is under an obligation to register an FIR onreceipt of information revealing cognizable offence. An exception to thisgeneral principle of criminal law is recognised by this Court in the caseof Lalita Kumari (supra), whereby preliminary verification ispermissible prior to the registration of FIR, with respect to cases relatedto corruption, matrimonial disputes, economic offences etc. However,Bthe scope of the preliminary verification cannot be enlarged to an extentwhereby the veracity of complaint or information can be verified. It issubmitted that the procedural safeguard contained in Section 154 is amandatory one and any violation thereof is not mere irregularity but anillegality which renders the registration of the subsequent FIR illegal.C7.13 It is submitted that in the case of Priyanka Srivastava v.State of Uttar Pradesh, (2015) 6 SCC 287, FIR was registered on anapplication filed under Section 156(3) Cr.P.C. The learned Magistratedirected registration of the FIR. However, this Court has held therequirements of Section 154 to be mandatory and in absence of whichDan application under Section 156(3) would not lie. It is submitted thatnon-adherence of Section 154 rendered the application under Section156(3) and the order passed by the learned Magistrate invalid. It issubmitted that the FIR which was registered pursuant to the order of thelearned Magistrate under Section 156(3) was also quashed for non-adherence to Section 154. It is submitted that therefore adherence to aEmandatory procedure under Section 154 cannot be said to be mereirregularity but an illegality which renders all the subsequent actions illegal.It is submitted that in the present case, the investigation has been carriedout without registration of the FIR under the guise of PreliminaryVerification and giving go-bye to the mandatory procedure required toFbe followed under Section 154 Cr.P.C.

7.14 Making the above submissions and relying upon the aforesaiddecisions, it is prayed to dismiss the present appeal.

8. We have heard the learned senior counsel for the respectiveparties at length.G

At the outset, it is required to be noted that by the impugnedjudgment and order and in exercise of its extra-ordinary jurisdiction, theHigh Court has quashed the entire criminal proceedings and the FIRagainst 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. TheHHigh Court has also declared Rule 3.16 of the Vigilance Manual, 2008

dealing with the Preliminary Enquiry (PE) as ultra vires. While quashingthe criminal proceedings, the High Court has also quashed the EntrustmentOrder 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 provisoto Section 3. The High Court framed the following questions:

a)Whether Section 3 of the Prevention of Corruption Act is amandatory provision and its non-adherence vitiates theinvestigation?

b)Whether prior sanction of Magistrate under Section 155Jammu & Kashmir Cr.P.C. is mandatory for investigatingCcognizable offences along with non-cognizable?

c)Whether under the pretext of Preliminary Verification theinvestigating agency can verify the veracity of complaintbefore registration of FIR?

d)Whether an offence like that of Criminal Conspiracy canbe committed by juridical person like company?

8.1 Relying upon the decision of this Court in the case of BhajanLal (supra), the High Court has observed and held that the authorisationby the Senior Superintendent of Police, VOK, Srinagar authorising theinspector Nisar Hussain to investigate the FIR for the offences underSections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006, which as such wasin exercise of powers under the second proviso to Section 3 is void andillegal as no reasons are assigned/given and the same is non-reasonedauthorisation. 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 1947Act and in the present case Section 3 of J&K PC Act, 2006 is requiredto be considered. Section 5A which fell for consideration before thisCourt 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 CriminalProcedure, 1898 (5 of 1898), no police officer below the rank, —

(a)in the case of the Delhi Special Police Establishment, of anInspector of Police;

(b)in the presidency towns of Calcutta and Madras, of anAssistant Commissioner of Police;

A(c)in the presidency town of Bombay, of Superintendent ofPolice; and

(d)elsewhere, of Deputy Superintendent of Police,

shall investigate any offence punishable under Section 161, Section165 or Section 165-A of the Penal Code, 1860 or under Section 5Bof this Act without the order of Presidency Magistrate or aMagistrate of the first class, as the case may be, or make anyarrest therefor without warrant:

Provided that if police officer not below the rank of anInspector of Police is authorised by the State Government in thisCbehalf by general or special order, he may also investigate anysuch offence without the order of Presidency Magistrate or aMagistrate of the first class, as the case may be, or make arresttherefor without warrant:

Provided further that an offence referred to in clause (e) ofDsub-section (1) of Section 5 shall not be investigated without theorder of police officer not below the rank of Superintendent ofPolice.”

8.2 The authority under which the investigating officer wasauthorised to investigate the offences under Section 5A of the Act whichEfell for consideration before this Court reads as follows:

“Haryana Government,

Home Department,

order

FNo. 4816-3H-75/22965

July 26, 1975

Conferred by the first proviso to sub-section (1) of Section 5-A ofthe Prevention of Corruption Act, 1947, the Governor of Haryanahereby authorises all the Inspectors of Police under theadministrative control of the Inspector General of Police, HaryanaGto investigate offences under Section 5 of the said Act.

S.D. Bhandari

Secretary to Government, Haryana

Home Department”

8.3 Section 3 of J&K PC Act, 2006, which is relevant for ourpurpose, reads as follows:

“3. Offences to be cognizable and non-bailable –Notwithstanding anything to the contrary in the Code of CriminalProcedure all offences punishable under this Act shall be cognizableand non-bailable:

Provided that no Police Officer below the rank of the DeputySuperintendent of Police shall investigate any such offence withoutthe order of Magistrate of the First Class or make any arresttherefor without warrant:

Provided further that if an officer of the Vigilance Organizationof and above the rank of Sub-Inspector of Police is speciallyauthorised in writing by an officer of the Vigilance Organizationnot below the rank of an Assistant Superintendent of Police toinvestigate such offence, such officer may investigate the offenceso specified in the order of authorization. But such officer shallnot be competent to arrest any person during such investigationunless Police Officer not below the rank of DeputySuperintendent of Police authorizes such arrest under Section 56of the Code of Criminal Procedure, Samvat 1989.”

8.4 The authorization in the present case authorising the inspectorNisar Hussain to investigate the FIR for the offences under Sections5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and 120B of the RPC, whichas such was in exercise of powers under the second proviso to Section3 reads as follows:

“Investigation of Case FIR No. 32/2012 u/s 5(1)(d) r/w 5(2) J&KPC Act Svt. 2006 and Section 120-B RPC P/S VigilanceOrganization, Srinagar is hereby entrusted to Insp. Nisar HussainNo. 4136/NGO. He is authorized u/s 3 PC Act, Svt. 2006 r/wSection 56 of Cr.P.C. to arrest the accused person(s) wheneverand wherever necessary.

He will conduct investigation of the case under the supervision ofSuperintendent of Police (BKB).”

Therefore, what was considered by this Court in the case ofBhajan Lal (supra) was Section 5A of the 1947 Act and the authorizationreferred to hereinabove. The wordings used in Section 3 of the J&K PC

AAct, 2006 are altogether distinct and different and that of Section 5A ofthe Prevention of Corruption Act, 1988 which fell for consideration beforethis Court in the case of Bhajan Lal (supra). The observations and thedecision of this Court in the case of Bhajan Lal (supra) has beenconsidered 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 proceedingsare stated to have been quashed on similar grounds in BhajanLal case [1992 Supp (1) SCC 335. The facts of that case wereone Dharam Pal presented complaint against Ch. Bhajan Lal,the former Chief Minister of Haryana making certain seriousallegations against him which prima facie showed commission ofoffence punishable under the Act. The complaint was presentedin the Chief Minister’s Secretariat on 12-1-1987 when the saidShri Bhajan Lal had ceased to be the Chief Minister. Anendorsement was made by the Officer on Special Duty in theChief Minister’s Secretariat to the effect: “CM has seen. Forappropriate action” and was marked to the Director General ofPolice who in turn made endorsement on the same day whichread: “Please look into this; take necessary action and report”and marked it to the Superintendent of Police, Hissar. The complaintalong with the above endorsement of the OSD and the DGP wasput up before the SP on 21-11-1987 on which date the SP madehis endorsement reading “Please register case and investigate”.The Station House Officer of the police station registered caseon the basis of the allegations in the complaint under Sections 161and 165 of the Penal Code, 1860 and Section 5(2) of the Preventionof Corruption Act, 1947. After forwarding the copy of the firstinformation report to the Magistrate and other officers concerned,the SHO took up the investigation and proceeded to the spotaccompanied by his staff. At this stage Shri Bhajan Lal filed WritPetition No. 9172 of 1987 under Articles 226 and 227 of theConstitution of India seeking quashing of the first information reportand issuance of directions restraining the police from furtherproceeding with the investigation. The High Court held thatallegations made in the complaint do not constitute cognizableoffence for commencing lawful investigation and granted reliefas prayed for by the petitioner therein. Aggrieved by the aforesaid

judgment the State of Haryana preferred an appeal in this Courtwhich was disposed of as under:

“We set aside the judgment of the High Court quashing thefirst information report as not being legally and factuallysustainable in law for the reasons aforementioned; but, however,we quash the commencement as well as the entire investigation,if any, so far done for the reasons given by us in the instantjudgment on the ground that the third appellant (SHO) is notclothed with valid legal authority to take up the investigationand proceed with the same within the meaning of Section 5-A(1) of the Prevention of Corruption Act, as indicated in thisjudgment. Further we set aside the order of the High Courtawarding costs with direction that the said costs are payableto the first respondent (Ch. Bhajan Lal) by the secondrespondent (Dharam Pal).

In the result, the appeal is disposed of accordingly but at the sametime giving liberty to the State Government to direct an investigationafresh, if it so desires, through competent police officerempowered with the valid legal authority in strict compliance withSection 5-A(1) of the Act as indicated supra. No orders as tocosts.”

In the facts and circumstances of that case this Court posed aquestion to itself in the following terms:

“Now what remains for consideration is whether there is anyvalid order of the SP permitting the third appellant to investigatethe offence falling under clause (e) of sub-section (1) of Section5. As we have already mentioned in the earlier part of this judgment,the SP (the second appellant) has given the one-word direction on21-11-1987 ‘investigate’. The question is whether the one-worddirection ‘investigate’ would amount to an ‘order’ within themeaning of second proviso of Section 5-A (1).”

The Court found on facts that as there was absolutely no reasongiven by the SP in directing the SHO to investigate, the order ofthe SP was directly in violation of the dictum of law. The SHOwas, therefore, found not clothed with the requisite legal authoritywithin the meaning of the second proviso to Section 5-A (1) of the1947 Act to investigate the offences under clause (e) of Section

5(1) of the Act. This Court held that (1) as the salutary legalrequirement of disclosing reason for according the permission isnot complied with, (2) as the prosecution is not satisfactorilyexplaining the circumstances which impelled the SP to pass theorder directing the SHO to investigate the case, (3) as the saiddirection manifestly seems to have been granted mechanicallyand in very casual manner, regardless of the principles of lawenunciated by this Court, and (4) as the SHO had got neither anyorder from the Magistrate to investigate the offences underSections 161 and 165 IPC nor any order from the SP forinvestigation of the offences under Section 5(1)(e) of the Preventionof Corruption Act in the manner known to law, the order of directionreading only “investigate” suffered from legal infirmity. The Courtfound that despite quashing the direction of the SP and theinvestigation thereupon it would not, in any manner, deter the Stateof Haryana from pursuing the matter and directing the investigationafresh in pursuance of the FIR, if the State so desired.

14. It may be noticed at this stage that three-Judge Bench ofthis Court in H.N. Rishbud v. State of Delhi [AIR 1955 SC 196]had held that defect or illegality in investigation, however serious,has no direct bearing on the competence or the procedure relatingto cognizance or trial. Referring to the provisions of Sections 190,193, 195 to 199 and 537 of the Code of Criminal Procedure (1898)in the context of an offence under the Prevention of CorruptionAct, 1947, the Court held:

“A defect or illegality in investigation, however serious, has nodirect bearing on the competence or the procedure relating toFcognizance or trial. No doubt police report which results froman investigation is provided in Section 190 CrPC as the materialon which cognizance is taken. But it cannot be maintained that avalid and legal police report is the foundation of the jurisdiction ofthe court to take cognizance. Section 190 CrPC is one out of aGgroup of sections under the heading ‘Conditions requisite forinitiation of proceedings’. The language of this section is in markedcontrast with that of the other sections of the group under thesame heading, i.e., Sections 193 and 195 to 199.

These latter sections regulate the competence of the court andbar its jurisdiction in certain cases excepting in compliance

therewith. But Section 190 does not. While no doubt, in one sense,clauses (a), (b) and (c) of Section 190(1) are conditions requisitefor taking of cognizance, it is not possible to say that cognizanceon an invalid police report is prohibited and is therefore 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 notpause to consider) and in any case cognizance so taken is only inthe nature of error in proceeding antecedent to the trial. To sucha situation Section 537 CrPC which is in the following terms isattracted:

‘Subject to the provisions hereinbefore contained, no finding,sentence or order passed by court of competent jurisdictionshall be reversed or altered on appeal or revision on account ofany error, omission or irregularity in the complaint, summons,warrant, charge, proclamation, order, judgment or otherproceedings before or during trial or in any inquiry or otherproceedings under this Code, unless such error, omission orirregularity, has in fact occasioned failure of justice.’

If, therefore, cognizance is in fact taken, on police report vitiatedby the breach of mandatory provision relating to investigation,there can be no doubt that the result of the trial which follows itcannot be set aside unless the illegality in the investigation can beshown to have brought about miscarriage of justice. That anillegality committed in the course of investigation does not affectthe competence and the jurisdiction of the court for trial is wellsettled as appears from the cases in — ‘Parbhu v. Emperor [AIR1944 PC 73] and — ‘Lumbhardar Zutshi v. R. [AIR 1950 PC26] “

It further held:

“In our opinion, therefore, when such breach is brought to thenotice of the court at an early stage of the trial, the court will haveto consider the nature and extent of the violation and passappropriate orders for such reinvestigation as may be called for,wholly or partly, and by such officer as it considers appropriatewith reference to the requirements of Section 5-A of the Act. It isin the light of the above considerations that the validity or otherwiseof the objection as to the violation of Section 5(4) of the Act has

DEF

to be decided and the course to be adopted in these proceedings,determined.”

In Bhajan Lal case [1992 Supp (1) SCC 335] this Court hadfound on facts that the SP had passed the order mechanically andin very casual manner regardless of the settled principles oflaw. The provisions of Section 17 of the Act had not been compliedwith. As earlier noticed the SP while authorising the SHO toinvestigate had made only an endorsement to the effect “Pleaseregister the case and investigate”. The SP was shown to be notaware either of the allegations or the nature of the offences andthe pressure of the workload requiring investigation by an Inspector.There is no denial of the fact that in cases against the respondentsin these appeals, even in the absence of the authority of the SPthe investigating officer was in law authorised to investigate theoffence falling under Section 13 of the Act with the exception ofone as is described under sub-section (1)(e) of the Act. Afterregistration of the FIR the Superintendent of Police in the instantappeals is shown to be aware and conscious of the allegationsmade against the respondents, the FIR registered against themand pending investigations. The order passed by the SP in thecase of Ram Singh on 12-12-1994 with respect to crimeregistered in 1992 was to the effect:

“In exercise of powers conferred by the provisions on me, underSection 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.) toFinvestigate 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 canbe discerned from the order itself. The appellant State is, therefore,justified in submitting that the facts of Bhajan Lal case [1992Supp (1) SCC 335] were distinguishable as in the instant case theSuperintendent of Police appears to have applied his mind andpassed the order authorising the investigation by an Inspector underthe peculiar circumstances of the case. The reasons for

entrustment of investigation were obvious. The High Court shouldnot have liberally construed the provisions of the Act in favour ofthe accused resulting in closure of the trial of the serious chargesmade against the respondents in relation to commission of offencespunishable under an Act legislated to curb the illegal and corruptpractices of the public officers. It is brought to our notice thatunder similar circumstances the High Court had quashed theinvestigation and consequent proceedings in case registeredagainst 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 directionto the trial court to proceed with the case in accordance with lawand in the light of the observations made therein.

15. We are not satisfied with the finding of the High Court thatmerely because the order of the Superintendent of Police was intyped pro forma, that showed the non-application of mind or couldbe held to have been passed in mechanical and casual manner.As noticed earlier the order clearly indicates the name of theaccused, the number of the FIR, the nature of the offence andpower of the Superintendent of Police permitting him to authorisea junior officer to investigate. The time between the registrationof the FIR and authorisation in terms of the second proviso toSection 17 shows further the application of mind and thecircumstances which weighed with the Superintendent of Policeto direct authorisation to order the investigation.”

8.5 Thereafter, having noticed that the order authorising theinvestigating officer in exercise of powers under Section 17 of thePrevention of Corruption Act, 1988 indicating the name of the accused,the number of the FIR, the nature of the offence and power of theSuperintendent of Police permitting him to authorise junior officer toinvestigate, the time between the registration of the FIR and theauthorisation in terms of second proviso to Section 17, this Court hasheld such authorisation to be valid.

8.6 In the present case also, it cannot be said that there was anynon-application of mind on the part of the Senior Superintendent of Policeauthorising the inspector Nisar Hussain to enquire into the FIR for theoffences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and120-B of the Ranbir Penal Code. It is required to be noted that Inspector

ANisar Hussain who was authorised to investigate the FIR for the aforesaidoffences was also authorised to arrest the accused persons wheneverand wherever necessary. It is also required to be noted that in the saidauthorisation it has been specifically mentioned that he will conduct theinvestigation of the case under the supervision of the Superintendent ofPolice (BKB). Therefore, all precautions are taken by the SeniorBSuperintendent of Police authorising the Inspector Nisar Hussain toinvestigate the FIR for the offences under the J&K PC Act, 2006.Even otherwise, it is required to be noted that on plain readingof the second proviso to Section 3, only two requirements are requiredto be satisfied, namely, (i) authorisation in writing by an officer of theCVigilance Organisation not below the rank of Assistant Superintendentof Police to an officer of not below the rank of Sub-Inspector of Policeto investigate such offences; and (ii) such officer authorised mayinvestigate the offences so specified in the order of authorisation.Therefore, as such, there is no requirement of giving either special reasonsDor there is no requirement to mention reasons. What is required to beconsidered is whether there is an application of mind with respect tooffences and the relevant provisions with respect to authorisation.Considering the authorisation reproduced hereinabove, it cannot be saidthat such authorisation authorising Inspector Nisar Hussain to investigatethe FIR for the offences under Sections 5(1)(d) r/w 5(2) of the J&K PCEAct, 2006 and 120B of the RPC can be said to be vitiated and/or can besaid to be void which warrants quashing of the entire criminal proceedingsincluding the FIR. Therefore, as such, the High Court has committed agrave error in quashing the entire criminal proceedings holding thatauthorisation in favour of Inspector Nisar Hussain was bad in law, relyingFupon the observations made by this Court in the case of Bhajan Lal(supra), which has been subsequently explained by this court in thecase of Ram Singh (supra). We are of the opinion that in the facts andcircumstances of the case and considering the authorisation read withthe second proviso to Section 3, authorisation cannot be said to be illegaland/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 notedthat the High Court has observed that for an investigating agency toinvestigate the group of offences which include the non-cognizable one,it must obtain sanction from the concerned Magistrate before launchingH

the investigation and in the present case no such sanction from theconcerned Magistrate has been obtained is concerned, it is to be notedthat the substantive offences against the respondent herein were underJ&K PC Act, 2006 and as per Section 3 of the Act, all offences underthe Act are cognizable and non-bailable. As such, the aforesaid issue issquarely covered against the respondent in view of the decision of thisCourt in the case of Pravin Chandra Mody(supra). In paragraph 6, itis observed and held as under:

“6. Section 156(2) provides that where police officer enquiresinto an offence under Section 156(1) his action cannot be calledinto question on the ground that he was not empowered toinvestigate the offence. The enquiry was an integrated one, beingbased on the same set of facts. Even if the offence under theEssential Commodities Act may not be cognizable — though it isnot alleged by the appellant that it is non-cognizable — the policeofficer would be competent to include it in the charge-sheet underSection 173 with respect to cognizable offence. In Ram KrishnaDalmia v. State [AIR (1958) Pb. 172], Falshaw, J (as he thenwas) observed that the provisions of Section 155(1) of the CriminalProcedure Code, must be regarded as applicable to those caseswhere the information given to the police is solely about non-cognizable offence. Where the information discloses cognizableas well as non-cognizable offence the police officer is notdebarred from investigating any non-cognizable offence whichmay arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for acognizable offence. We entirely agree. Both the offences ifcognizable could be investigated together under Chapter XIV ofthe Code and also if one of them was non-cognizable offence.”10. In the present case, the offence under the Prevention ofCorruption Act is substantive offence and the investigation in respectof the offence under the PC Act, when considered and coupled with theoffence of conspiracy, there is no requirement of prior sanction of theMagistrate. Merely because the offence of the conspiracy may beinvolved, investigation into the substantive offence, i.e., in the presentcase, offence under the PC Act which is cognizable is not required toawait sanction from the Magistrate, as that would lead to considerabledelay and affect the investigation and it will derail the investigation.

ATherefore, the High Court has erred in quashing the criminal proceedingson the ground that as the offence under Section 120B which is 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 thelaw laid down by this Court in the case of Pravin Chandra Mody(supra), which has been subsequently relied upon by this Court in theBcases of Brij Lal Palta (supra); Satya Narain Musadi (supra); MadanLal (supra); and Bhanwar Singh (supra).

11. The impugned judgment and order passed by the High Courtinsofar as holding Rule 3.16 of the Vigilance Manual, 2008 as ultravires is concerned, it is required to be noted that even Rule 3.16 can beCsaid to be in consonance with the observations and the law laid down bythis Court in the case of Lalita Kumari (supra). Rule 3.16 reads asunder:

“Clause 3.16 – Preliminary Enquiry (PE)

DWhen complaint or information discloses adequate materialindicating misconduct on the part of public servant which needs adetailed verification prior to registration of case u/s 154 Cr.P.C.,a Preliminary Enquiry (PE) can be ordered. PE should normallybe completed in period of six months. The PE will be registeredon given proforma (Annexure K). Sometimes courts also orderEan enquiry by the State Vigilance Organisation. Such preliminaryenquiries should also be registered after approval of theCommissioner of Vigilance. PE may be converted into FIR,with the prior concurrence of central office, as soon as sufficientmaterial becomes available to show that, prima facie, commissionFof cognizable offence under Prevention of Corruption Act ismade out. When the material available indicates ingredients ofmisconduct alone and not criminal misconduct, self-containednote should be sent to the appropriate disciplinary authority fordepartmental action.”

12. On close reading of Rule/Clause 3.16, it can be seen thatGeven the same can be said to be in the interest of the accused and/or aperson against whom the allegations are made and to safeguard theaccused against frivolous complaints. As per Clause 3.16 only after thePreliminary Enquiry is conducted and there is prima facie case found,an FIR is required to be registered. Considering the nature of offences,Ha detailed enquiry is required and therefore it is observed in Clause 3.16

that PE should be completed normally within period of six months. Itis the case on behalf of the respondent and even as observed and heldby the High Court in the impugned judgment and order as per the lawlaid down by this Court in the case of Lalita Kumari (supra), detailedinvestigation into the allegations on merits is not required by holdingPreliminary Enquiry and that such enquiry is to be completed within aperiod of 7 days is concerned, it is to be noted that in the case of LalitaKumari (supra), it is not held that if the Preliminary Enquiry is notcompleted within period of 7 days, the entire criminal proceedingswould be void and the same are to be quashed.13. So far as the submission on behalf of the respondent that inthe present case by conducting Preliminary Enquiry, detailedinvestigation has been made and only thereafter the FIR is registeredand that at the time of Preliminary Enquiry, investigation is not permissiblesince the FIR is lodged is concerned, the aforesaid submission seems tobe attractive but has no substance. While holding Preliminary Enquiryunder Clause 3.16, whatever is conducted will be in the form of enquiryinto the allegations to consider whether any prima facie case is madeout or not which requires further investigation after registering the FIRor not. While considering the prima facie case for the purpose ofregistering the FIR, some enquiry/investigation is bound to be there,however, the same shall be only for the purpose of finding out primafacie case for the purpose of registration of the FIR only. Whateverenquiry is conducted at the stage of Preliminary Enquiry, by no stretchof imagination, will be considered as investigation under the code ofcriminal procedure which can only be after registration of the FIR. Evenotherwise, merely because while holding Preliminary Enquiry detailedenquiry is made into the allegations made against the respondent which,as observed hereinabove, can be said to be only for the purpose of findingout prima facie case for the purpose of registration of the FIR andmerely because some more time is taken in conducting the PreliminaryEnquiry before registering the FIR, the entire criminal proceedings cannotbe quashed. There shall not be any prejudice caused to the accused atthe stage of holding Preliminary Enquiry which as observed hereinaboveshall only be for the purpose of satisfying whether any prima facie caseis made out with respect to the allegations made in the complaint whichrequires further investigation after registering the FIR or not. Therefore,the High Court has materially erred in holding and declaring Clause 3.16as ultra vires.

A14. Now so far as the 4[th] ground/question on which the HighCourt has quashed the criminal proceedings, namely, the respondentcannot 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 respectof his individual capacity. Besides the Directors of the Private LimitedBCompanies, respondent no.1 and other officials have been arrayed as anaccused. Therefore, there is no question of any vicarious liability and theobservations made by the High Court that in absence of main conspirators– Private Limited Companies and/or their in-charge persons, respondentno.1 cannot be held liable is unsustainable and cannot be accepted. TheCHigh Court has erred in quashing the entire criminal proceedings on theaforesaid ground.

15. In view of the above and for the reasons stated above, theimpugned judgment and order passed by the High Court quashing theentire criminal proceedings for the offences under Sections 5(1)(d) r/wD5(2) of the J&K PC Act, 2006 and 120B of the Ranbir Penal Codearising out of FIR No. 32/2012 and quashing and setting aside theEntrustment Order dated 16.11.2012 passed by the Senior Superintendentof Police, VOK, Srinagar authorising the Inspector Nisar Hussain toinvestigate the FIR for the offences under Sections 5(1)(d) r/w 5(2) ofthe J&K PC Act, 2006 and 120B of the Ranbir Penal Code and holdingEand declaring Rule/Clause 3.16 of the Vigilance Manual, 2008 dealingwith Preliminary Enquiry (PE) as ultra vires is unsustainable and deservesto be quashed and set aside and is hereby quashed and set aside. FIR/criminal proceedings against the respondent being FIR No., 32/2012 forthe offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006

Fand 120B of the Ranbir Penal Code is to be investigated and proceededfurther by the authorised officer expeditiously.

16. The present appeal is allowed accordingly.

Devika GujralG

Appeal allowed.