While no tears will be shed for the demise of Anti-Corruption Bureau in Karnataka, restoring the Lokayukta Police’s powers cannot ensure a higher rate of conviction for corruption, unless the courts follow the dictum that every instance of irregularity in investigation is not tantamount to miscarriage of justice.
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LAST month, Karnataka’s Anti-Corruption Bureau (‘ACB’) made it to the headlines when a sitting judge of the Karnataka High Court revealed that he was threatened with a transfer for criticizing the deplorable manner in which the ACB was functioning. This incident rekindled the issue of the government diluting the Lokayukta’s authority in 2016 by withdrawing its police wing’s power to investigate cases under the Prevention of Corruption Act, 1988 (‘PC Act’) and conferring it on the ACB.
When the discussion on the ACB’s laxity was raging, the Karnataka high court declared earlier this month that the establishment of the ACB was illegal as it had been established by an executive order without legislative support. The court also ordered the pending cases to be transferred to the Lokayukta Police.
The high court faulted the ACB for relying on an incomplete SIR and not conducting a preliminary enquiry before registering an FIR against Naik.
Though the high court took six years to decide the case, it has delivered an impactful verdict. The ACB was an ordinary unit of the state police, under the Department of Personnel. Unlike the Lokayukta Police, which was under the administrative and disciplinary control of the Lokayukta, the ACB was neither supervised by an independent authority nor did it enjoy institutional support from an ombudsman like the Lokayukta. While restoring the Lokayukta Police’s powers is not a silver bullet to eradicate corruption, it may infuse much-needed accountability that the ACB lacked.
The ACB has botched up investigations on multiple occasions, which led to acquittals and quashing of cases. Here is a curious case which met its fate due to an unconventional decision of the Karnataka high court.
On March 16 this year, Karnataka’s ACB raided the residences and offices of eighteen public servants who were suspected to have amassed wealth disproportionate to their known sources of income. While investigating the case registered against one of these public servants, the ACB searched a house which belonged to a person called Munavar Pasha. The ACB found here two travel bags and a carton which allegedly belonged to Kumar Naik, an employee of the Karnataka Power Transmission Corporation Limited. As per the ACB’s version, the search revealed that property records, cash, and jewellery belonging to Naik and his wife had been stored in Pasha’s house.
On the same day, a Deputy Superintendent of Police prepared a Source Information Report (‘SIR’) enumerating the articles seized from Pasha’s house, which were suspected to belong to Naik. After consulting a valuer, he recorded that Naik may have amassed assets worth four crore rupees. Pursuant to this SIR, the ACB registered a First Information Report (‘FIR’) against Naik under Section 13(1)(b) of the PC Act. The ACB began investigating the case immediately and raided Naik’s house on March 17. When the case was being investigated, Naik filed a petition before the Karnataka High Court, urging the court to quash the case.
An FIR cannot be expected to contain all the incriminating information against the accused. It is precisely because of this proposition that the Supreme Court has authoritatively held on multiple occasions that when the facts are hazy or incomplete, high courts should let the police investigate instead of quashing the FIR.
On July 26, the high court exercised its inherent powers under Section 482 of the Code of Criminal Procedure, 1973, and quashed the case against Naik. The court faulted the ACB for relying on an incomplete SIR and not conducting a preliminary enquiry before registering an FIR against Naik. It observed that the ACB “blissfully ignored the ABC of procedure”. However, it appears that the high court may have overstepped its jurisdiction under section 482, and overlooked the law laid down by the Supreme Court on FIRs, preliminary enquiries, and so on.
In this case, the SIR prepared by the ACB’s Deputy Superintendent of Police formed the basis of the FIR registered against Naik. The high court criticized the ACB for registering the FIR by relying on an incomplete SIR which merely enumerated certain properties and other assets suspected to have been amassed illegally (based on the search), and did not estimate the income and the percentage of disproportionate assets of the accused. The court observed:
“The entire narration of allegation which would become criminal misconduct against the petitioner is on the basis of the records found in somebody else’s house in connection with someone else’s crime. Such a source information report against the petitioner is no report in the eye of law.”
Before examining the correctness of the court’s conclusions, it is important to bear in mind that the Code and the PC Act do not stipulate what an SIR is, or what it ought to contain. As pointed out by the court, preparation of an SIR is a ‘norm’ or a ‘procedure’ followed by the ACB before registering a case regarding disproportionate assets. Some police agencies’ manuals prescribe how an SIR is to be drafted, who may draft it, and so on. Therefore, it is merely a procedure devised by agencies like the ACB to ensure that the FIR is founded on a report containing details of the disproportionate assets.
An FIR registered pursuant to an ‘incomplete SIR’ may not be comprehensive or detailed but it certainly qualifies as a valid FIR. It is a well-settled principle of criminal law that an FIR need not be an “encyclopaedia of facts”. The purpose of an FIR is to set criminal law into motion by enabling a police officer to investigate an offence. An FIR merely has to disclose the commission of a cognizable offence. A Constitution bench of the Supreme Court, in Lalita Kumari versus Government of UP & Ors. (2013) has held:
“Every cognizable offence must be investigated promptly in accordance with law and all information provided under Section 154 of the Code about the commission of a cognizable offence must be registered as an FIR so as to initiate an offence. The requirement of Section 154 of the Code is only that the report must disclose the commission of a cognizable offence and that is sufficient to set the investigating machinery into action.” (Emphasis supplied).
Section 13(1) (b) of the PC Act is a cognizable offence. Though the FIR did not contain details like Naik’s income and the percentage of disproportionate assets, it contained sufficient information to set the law into motion. These details can always be collected during the investigation. The discovery of documents indicating ownership of property worth crores of rupees and other valuable articles in a stranger’s house was bound to evoke suspicion among the officers of the ACB. The registration of the FIR enabled the ACB to launch an investigation by immediately obtaining a search warrant to search Naik’s house and collect evidence.
Unlike a police report (chargesheet in common parlance) filed under Section 173 of the Code, an FIR cannot be expected to contain all the incriminating information against the accused. It is precisely because of this proposition that the Supreme Court has authoritatively held on multiple occasions that when the facts are hazy or incomplete, high courts should let the police investigate instead of quashing the FIR. In M/s Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra & Ors. (2021), the Supreme Court reiterated that high courts should not ordinarily quash FIRs by invoking inherent powers. It went on to lay down eighteen principles that circumscribe the power to quash cases. They include:
“1.Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences
The FIR is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation.
When a prayer for quashing the FIR is made by the alleged accused, the court…only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not.”
By overlooking the fact that the purpose of an FIR is to merely enable the police to investigate a case and attaching inordinate importance to an SIR, the high court appears to have overstepped its jurisdiction under section 482 of the Code.
Not conducting a preliminary enquiry is not fatal
The second reason assigned by the high court while quashing the case is the ACB’s failure to conduct a preliminary enquiry (‘PE’) before registering an FIR against Naik. According to the court, the failure to conduct a PE violated the Supreme Court’s directions in Lalita Kumari and P. Sirajuddin versus State of Madras (1970). While it is true that both these judgments recognize the importance of a PE in corruption cases to avoid harassment of public servants, the failure to conduct a PE before registering an FIR is not fatal and does not vitiate the case.
The court has categorically held that a case must not be quashed merely because the registration of the FIR under the PC Act was not preceded by a PE. It has even clarified that while a PE is desirable in some cases to avoid frivolous or malicious prosecution of public servants, the directions in Lalita Kumari and P. Sirajuddin do not imply that a PE is mandatory in all the cases.
Interestingly, the Supreme Court has already examined this aspect in some of the cases under the PC Act decided after P. Sirajuddin and Lalita Kumari. The court has categorically held that a case must not be quashed merely because the registration of the FIR under the PC Act was not preceded by a PE. It has even clarified that while a PE is desirable in some cases to avoid frivolous or malicious prosecution of public servants, the directions in Lalita Kumari and P. Sirajuddin do not imply that a PE is mandatory in all the cases.
In CBI & Anr. versus T.H. Vijayalakshmi (2021), the Supreme Court held if a PE had not been conducted, the accused could not demand it as a right. It went on to observe that the Telangana High Court erred by examining the merits of the SIR and quashing the case against the petitioner, who had been booked for amassing disproportionate assets.
The Karnataka high court has not discussed any of these cases in its judgment.
Furthermore, even if the procedure followed by the ACB was irregular, the accused should not be allowed to benefit from it as the Supreme Court has repeatedly held that an irregularity in the investigation does not vitiate the case unless the irregularity results in a miscarriage of justice.
Ramifications of such decisions
Of late, the Karnataka High Court has observed in at least three cases that corruption is rampant in the state. Karnataka’s anti-corruption agencies like the Lokayukta Police and the ACB have been struggling to secure convictions ever since their inception.
This decision may set a wrong precedent and enervate the anti-corruption laws and institutions.