SC says ‘open enquiry’ by ACB only to ascertain if serious offence disclosed; dismisses appeal by ex-public servant

MUMBAI: The Supreme Court (SC) recently dismissed an appeal filed by Charansingh Thakur to question a notice from Anti-Corruption Bureau (ACB) for him to participate in an open enquiry into disproportionate assets allegations made in 2018, against him.
The SC said holding of a discrete/open enquiry, at preregistration of FIR stage in the case of allegation of corrupt practice of accumulating assets disproportionate to his known sources of income, cannot be said to be per se illegal.
The SC bench of Justices D Y Chandrachud and M R Shah who passed the judgment said, an enquiry at pre-FIR stage is permissible and also desirable, in cases of disproportionate assets only to ascertain whether cognizable offence is disclosed or not.
The SC clarified that his statement would be only to satisfy whether a cognizable offence is disclosed or not so as to enable the appellant to clarify the allegations made against him with respect to accumulation of assets disproportionate to his known sources of income.
Any such statement made as part of the open enquiry shall not be treated as a confessional statement, nor can it be used against the public servant during the trial, if any, it held.
Charansingh is former political rival of Maharashtra Cabinet minister (Home) Anil Deshmukh in Nagpur. He had made Deshmukh a party in his petition before Bombay high court, Nagpur bench last year while challenging the legality of the ACB notice. HC had dismissed his petition. In his appeal before the SC, Deshmukh was not a party.
Such an enquiry would be to safeguard his interest also which may avoid further harassment to him, said the SC on March 24, finding no reason to interfere with a judgment passed last November by the high court.
The HC bench of Justices S B Shukre and A G Gharote had dismissed Charansinghs challenge to the notice seeking his personal appearance before the ACB officer. The HC had said the ACB notice was only to facilitate a preliminary enquiry and cannot be held to be bad in law. But the HC had said the notice cannot force Charansingh to make his personal appearance before the ACB. But his non appearance could be at his own peril as the sleuths may draw an adverse inference.
Before the SC, senior counsel Subodh Dharmadhikari for Charansingh had argued that the March 2020 notice from ACB, Nagpur, was a political vendetta with malice by the ruling party in Maharashtra to harass a political opponent.
The state, through senior counsel Raja Thakare pointed to the ACB manual to argue that it permits discrete enquiries and open enquiries, to find out the veracity of the allegations in the complaint. He said such enquiry is warranted to find out if an offence under section 13(e) of the Prevention of Corruption Act is disclosed about alleged accumulation of assets disproportionate to known source of income of a public servant.
The SC noted, A detailed procedure is provided under the Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual of Instructions 1968, while conducting open enquiries.
After completing the enquiry, a final report along with the papers of the enquiry is required to be sent to the Director General, ACB.
It said, a fool proof safeguard and procedure is provided before lodging an FIR/complaint before the Court against the public servant, who is facing allegations of corrupt practice.
The SC also said even while registering an FIR police officer is not required to be satisfied or convinced that a cognizable offence has been committed. It is enough if the information discloses the commission of a cognizable offence as the information only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law.”
The SC said the Lalita Kumari ruling of 2013 makes it clear that it is mandatory o register an FIR if information discloses commission of a cognizable offence and it must be strictly complied with.”
But if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not.
Thakare said and the SC noted that the Public Servant did join the open enquiry in January by attending the ACB office with relevant documents and his partial statement was recorded.
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