SUPREME COURT REFUSES TO QUASH FIR REGISTERED ON THE BASIS OF MERE “PROBABILITY” THAT RESPONDENTS POSSESSED DISPROPORTIONATE ASSETS

A Two Judge Bench of the Supreme Court comprising of Justice S. Ravindra Bhat and Justice Dipankar Datta passed a Judgment dated 01-03-2023 in the matter of The State of Chhattisgarh vs Aman Kumar Singh and Others, and Uchit Sharma vs The State of Chhattisgarh and Others, Criminal Appeal No. 646 – 648 / 2023 and refused to quash a First Information Report (FIR) registered with the Economic Offences Wing (EOW) on the basis of mere “probability” that the  Respondents committed criminal misconduct under the Prevention of Corruption Act, 1988 (PC Act) and the Indian Penal Code 1860 (IPC).

Facts

i) In this case, the Appellant- Shri. Uchit Sharma filed a Complaint dated 11-10-2019 with the Office of the Chief Minister of Chhattisgarh State, thereby, alleging that (i) the Respondent- Shri. Aman Singh, an Indian Revenue Service (IRS) Officer and former Principal Secretary to the erstwhile Chief Minister of Chhattisgarh and (ii) the Respondent’s Wife, Smt. Yasmin Singh, a former Consultant to the Government of Chhattisgarh, and their family members were involved in corruption and money laundering and that the Respondent also held assets disproportionate to his known sources of income.

ii) Upon receiving the Complaint, the Chief Minister of Chhattisgarh State directed the Chief Secretary of the State to have the Complaint inquired by EOW on 14/15-10-2019. Accordingly, the said Complaint was forwarded by the State to EOW / Anti-Corruption Bureau (ACB) vide Letter dated 21-10-2019 and the EOW / ACB registered a Preliminary Inquiry bearing No. E.35/2019.

iii) Meanwhile, the Respondent’s Wife, Smt. Yasmin Singh filed a Writ Petition bearing P. (S)6521/2019 thereby questioning and seeking setting aside of an Order dated 10-05-2019, whereby the State Department instituted a Departmental Inquiry against her based on a Complaint dated 12-04-2019 lodged by one, Vikas Tiwari, the Spokesperson of the Chhattisgarh Unit of the Indian National Congress Party. During the pendency of the Writ Petition, Smt. Yasmin filed an Interim Application bearing I.A.04/2020 seeking stay of the aforesaid Preliminary Inquiry bearing No. P.E.35/2019 registered by EOW / ACB.

iv) The High Court of Chhattisgarh vide Order dated 16-01-2020 directed the State not to take any steps against Smt. Yasmin pursuant to the Complaint dated 12-04-2019 lodged by Vikas Tiwari.

v) Further, the Respondent-Aman Singh filed a Writ Petition WPCR 88/2020 before the High Court on 29-01-2020 thereby challenging and seeking quashing of the Letter of the State Department dated 21-10-2019 directing the EOW / ACB to inquire into the allegations made by the Appellant-Uchit Sharma.

vi) During the pendency of the aforesaid WPCR 88/2020, an FIR bearing No. 9/2020 dated 25-02-2020 was registered against both the Respondent-Aman Singh and his Wife, Yasmin Singh by EOW / ACB under Section 13(1)(b) and (2) of the PC Act (Criminal misconduct by a public servant) read with Section 120B of the IPC (Punishment of criminal conspiracy).

vii) After registration of FIR, (i) the Respondent-Aman Singh filed for Amendment of WPCR 88/2020 before the High Court on 28-02-2020 thereby challenging the FIR and (ii) the Respondent’s Wife, Yasmin Singh also filed a WPCR 154/2020 on 02-03-2020 seeking an order for quashing of the said FIR.

viii) The High Court vide Order dated 28-02-2020 allowed the Respondent’s Application for Amendment and further directed the State not to take any coercive steps against him till the next date of hearing.

ix) Thereafter, the Respondent and his Wife both jointly instituted WPCR 206/2020 before the High Court on 15-04-2020 seeking appropriate order for listing of WPCR 88/2020 and WPCR 154/2020 for final hearing and an order declaring the action of the EOW / ACB in directing HDFC Bank Ltd., the Respondent No.5, to put a hold on the funds in the Respondent’s salary account, as void and illegal.

x) The High Court, vide Order dated 06-09-2021, observed that there was a dispute regarding the income of the Respondent and his Wife and hence, the EOW / ACB were directed to file the case diary and the details of income and expenditure for the perusal of the High Court to determine whether there is disproportionate income or not.

xi) But the State sought for exemption from filing the aforesaid records and case diary and also sought for setting aside of the earlier Order dated 28-02-2020 that restrained EOW / ACB from taking coercive steps against the Respondent.

xii) Thereafter, the High Court of Chhattisgarh at Bilaspur, vide Order dated 10-01-2022, quashed the FIR and thereby, allowed the Respondent’s WPCR 88/2020 further, partly allowed Smt. Yasmin’s WPCR 154/2020, primarily on the ground that the FIR was silent with regard to the quantum of disproportionate income and hence, the essential ingredient of the offence of criminal misconduct under Section 13 of PC Act was not satisfied.

Supreme Court Observations

Aggrieved by the High Court Order dated 10-01-2020, the State of Chhattisgarh and the Original Complainant- Uchit Sharma filed Appeals before the Supreme Court. The Apex Court vide Judgment dated 01-03-2023 made the following observations:

1) That Section 13 (1) of the PC Act provides that a public servant is said to have committed criminal misconduct if (i) he dishonestly misappropriates any property entrusted to him or (ii) intentionally and illicitly enriches himself or (iii) is in possession of pecuniary resources or property disproportionate to his known and lawful sources of income which the public servant cannot satisfactorily account for, etc during the period of his office.

2) That increase in the assets of such a public servant tantamount to constitutionally impermissible conduct and such conduct is liable to be put under the scanner of the P.C. Act.

3) Thus, in a complaint against acquisition of disproportionate assets:

i) A preliminary inquiry is important to be conducted to assess the quantum of such disproportionate assets, if there is substance in the complaint.

ii) Further, such preliminary inquiry would facilitate to form an opinion about whether registration of FIR would be required in the particular case.

iii) An FIR in a disproportionate assets case must, prima facie, contain ingredients for the perception that there is fair enough reason to suspect commission of a cognizable offence relating to “criminal misconduct” punishable under the P.C. Act and to embark upon an investigation.

iv) An FIR in a disproportionate assets case and even otherwise, can be registered based on mere “probability” that a crime has been committed.

v) Hence, if any person challenges such FIR before a Court, the Court may interfere only in exceptional cases where the records reveal that there are absolutely no materials available to support even a reasonable suspicion that the public servant has dishonestly enriched himself during the period of his service.

4) In the present case, the FIR was registered on the “probabilities” that various deposits and investments of big amounts were received in the Respondent’s Wife’ Account; that the Respondent and his Wife made disproportionate expenses in their names and in the names of their dependent members, etc, which were all found to be amounting to criminal misconduct under Section 13 of PC Act and criminal conspiracy under Section 120 B of IPC.

5) But the High Court quashed the FIR on the ground that it was based on “probabilities” with regard to disproportionate income and as the FIR did not specify the quantum of disproportionate income.

6) That based on the aforementioned principles, the High Court ought not to have quashed the FIR on the ground that it was based on mere “probabilities” that the Respondent and his Wife had disproportionate income and made disproportionate expenses and thereby, committed criminal misconduct under PC Act and IPC, as an FIR can even be registered on a mere “probability” that an offence has been committed.

Thus, based on the aforesaid observations, the Supreme Court held that there were no cogent grounds for quashing of FIR and hence, the High Court Order dated 10-01-2020 was set aside and thereby, the Appeals were allowed.

 

Harini Daliparthy

Senior Associate

The Indian Lawyer