The Supreme Court held on Friday that Preliminary Enquiry (PE) is not mandatory before FIR registration by the CBI under the Code of Criminal Procedure or Prevention of Corruption Act or the investigative agency’s manual and the accused cannot insist on it as a right. The apex court said that in case the information received by the CBI, through a complaint or a source information under CBI manual, discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a PE.
The top court also clarified in its 64-page verdict that if the CBI chooses not to hold a PE, the accused cannot demand it as a matter of right. A bench of Justices D Y Chandrachud, Vikram Nath and B V Nagarathna set aside a Telangana High Court order of February 11, 2020 quashing the FIR registered by CBI in disproportionate asset case against an 1992 batch IRS officer Vijayalakshmi and her husband Audimulapu Suresh, who is presently Andhra Pradesh Education Minister. In view of the discussion, we hold that since the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, PC Act or even the CBI Manual, for this Court to issue a direction to that affect will be tantamount to stepping into the legislative domain, the bench said.
Hence, we hold that in case the information received by the CBI, through a complaint or a source information under Chapter 8 (of CBI manual), discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence, it said. The bench said however that its formulation does not take away from the value of conducting a PE in an appropriate case which has been acknowledged in catena of verdicts of this court where it has been held that the accepted norm — be it in the form of CBI Manual or like instruments — is to insist on a preliminary inquiry. The registration of a Regular Case can have disastrous consequences for the career of an officer, if the allegations ultimately turn out to be false.
In a Preliminary Enquiry, the CBI is allowed access to documentary records and speak to persons just as they would in an investigation, which entails that information gathered can be used at the investigation stage as well. it said. The bench added that conducting a PE would not take away from the ultimate goal of prosecuting accused persons in a timely manner and we once again clarify that if the CBI chooses not to hold a Preliminary Enquiry, the accused cannot demand it as a matter of right. It said that earlier verdicts of the top court had clarified that a PE is valuable in corruption cases but it does not vest a right in the accused and only ensure that there is no abuse of the process of law in order to target public servants. It said that it has been thus held in earlier verdicts that a PE is not mandatory when the information received discloses the commission of a cognizable offence. Even when it is conducted, the scope of a Preliminary Enquiry is not to ascertain the veracity of the information, but only whether it reveals the commission of a cognizable offence.
The need for a Preliminary Enquiry will depend on the facts and circumstances of each case. As an illustration, ‘corruption cases’ fall in that category of cases where a Preliminary Enquiry ‘may be made’, it said. The bench said that the CBI Manual as held by this court earlier is not a statute enacted by the legislature and it is a compendium of administrative orders for the internal guidance of the CBI and the use of the expression may be made goes to emphasize that holding a preliminary enquiry is not mandatory. It said the precedents of this Court and the provisions of the CBI Manual make it abundantly clear that a PE is not mandatory in all cases which involve allegations of corruption. It added that similarly, the CBI Manual notes that a PE is required only if the information (whether verified or unverified) does not disclose the commission of a cognizable offence.
Even when a Preliminary Enquiry is initiated, it has to stop as soon as the officer ascertains that enough material has been collected which discloses the commission of a cognizable offence, the bench said. The proposition that a PE is mandatory is plainly contrary to law, for it is not only contrary to the decision of the Constitution Bench but would also tear apart the framework created by the CBI Manual, it added. The bench said the Single Judge of the Telangana High Court has acted completely beyond the settled parameters which govern the power to quash an FIR. The Single Judge has donned the role of a Chartered Accountant. The Single Judge has completely ignored that the Court was not at the stage of trial or considering an appeal against a verdict in a trial, it said. The CBI in its FIR registered on September 20, 2017 has claimed that the couple has acquired assets worth over Rs 5.55 crore against the income of over Rs 4.84 crore during the check period of April 1, 2010 to February 29, 2016.
It has said there was a 22.86 per cent jump in their income to the tune of assets worth Rs 1,10,81,692.
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