COMMON ORDER These criminal original petitions are filed to quash the F.I.R.No.RC MA 1 2016 A 019, on the file of the Inspector of Police, CBI, ACB, Chennai.
2. According to the petitioner in Crl.O.P.No.17806 of 2017, he is a public servant, officer of IRS cadre and he had been availing the service of an inter-mediator for traveling and accommodation at various places. Hence, the CBI has registered a case against him and the matter is under investigation.
3. The main contention of the petitioner is that when Chapter 8 and 9 of the CBI manual mandates the CBI official to follow certain protocols in order to avoid malicious or erroneous prosecution, these protocols have not been followed in the present case. The FIR indicates that based on the source information received on 26.02.2016 at 11.30 hours, the case has been registered against the public servants arrayed as A4 to A12, alleging that the Chartered Accountants A1 to A3 have been enunciating the following pecuniary benefits to A4 to A12 and other un-known public servants by providing facilities while they were on personal visits at various place in India and abroad. Thus, immediately on receipt of source information, registration of FIR clearly indicates that the mandate under the CBI manual, particularly provisions of Chapter 8 has been flagrantly violated.
4. The reading of FIR indicates that no preliminary inquiry was conducted to establish the genuineness and credit worthiness of source information, while Clause 8.26 of the CBI manual mandates the respondent police to collect quality information regarding mis-use of official position before registering FIR and even after collecting quality information, he should further verify whether there is prima facie matter meriting action by CBI and that too, after the approval of competent authority. The further contention of the learned counsel for the petitioner is that while Clause 9 of CBI manual mandates that a preliminary enquiry before registering a regular case is necessary and such preliminary enquiry should be properly conducted by interrogating adequate number of persons to judge whether there is substance in the allegation which are inquired into and whether the causes worthy pursuing.
5. In support of his contention apart from referring to the judgments of Hon'ble Supreme Court, which has laid down certain principles regarding the nature of investigation conducted by CBI vis-a-vis the CBI manual, the learned counsel also relied upon the judgment rendered by this Court in Crl.OP.No.2159 of 2017, filed by the co-accused viz.,S.Murali Mohan Vs.State by:Inspector of Police, Central Bureau of Investigation SPE, ACB, Chennai, to quash the FIR No.RC MA 1 2016 A 019, wherein the petitioners herein are the co-accused in the same FIR. Therefore, the learned counsel submitted that a similarly placed accused should be treated on par since FIR has been quashed against one of the accused following the principle of parity, as against these two petitioners also the FIR has to be quashed up.
6. In support of his submission, the learned counsel relied upon a judgment of Hon'ble Supreme Court of India in the case of Mahendra Singh Dhoni vs. Yerraguntla Shyamsundar reported in CDJ 2017 SC 455 and in the case of Harbhajan Singh Vs. State of U.P.(1982)2 SCC 101 wherein, the Hon'ble Supreme Court has held that when the Court grants benefit to one of the accused person, it is appropriate that similar benefit should be extended to the co-accused also and further the learned counsel also relied upon another judgment of Hon'ble Supreme Court in the case of State of Bihar Vs. Kalika Kuer @Kalika Singh & Others reported in CDJ 2003 SC 508 wherein the Hon'ble Supreme Court has held that if a single Judge is not agreeing with a view of another single Judge, then it is appropriate to refer the matter to a larger Bench instead of rendering a contra judgment. With the above submissions, the learned counsel for the petitioner summed up as follows:
(1)No Preliminary enquiry was conducted after receiving the source information flouting the mandate given under the CBI manual, FIR has been hastily registered.
(2)The single judge of this Court has already scrutinized the FIR and on considering the rival submissions had quashed the FIR in the petition filed by the co-accused and hence, the same should be extended to these petitioners also.
(3)If the Court is not convinced about the submissions, the matter has to be referred to a larger Bench for decision and contrary judgment should not be rendered.
7. Since there was doubt about the facts submitted by the petitioners, in order to verify whether the CBI has hastily registered the case without conducting preliminary enquiry, this Court sought for the records pertaining to the FIR.
8. In reverence to the direction of this Court, learned Special Public Prosecutor for CBI has produced the record and also made his submissions as under:
On receipt of source information, CBI has registered a preliminary enquiry proceedings on 19.02.2015 in BE.No.MA1/2015 A/0002 and the matter was inquired by the officers in the rank of Deputy Superintendent of Police strictly in consonance with the protocol of CBI manual. After detailed inquiry, collection and gathering of evidence took time for a period of more than a year staring from 19.02.2015. The FIR was registered after being convinced, that enough material to prosecute the petitioners are available.
9. The learned Single Judge of this Court has quashed the FIR filed by the co-accused has not taken note of the submission made by the prosecution regarding the preliminary inquiry conducted and the finding of the preliminary enquiry instead the Court has arrayed at a wrong conclusion that on perusal of the grounds of the petition and also perusal of the averment of the counter statement filed by the respondent police that FIR does not disclose prima facie case against the petitioner. It is per se improbable exercise of power due to non-appreciation of material facts placed before this Court.
10. Mere omission to mention about the preliminary enquiry in the FIR cannot be a reason to quash the FIR, when the facts and circumstances is otherwise and the same had been placed before the Court. Hence, the learned Special Public Prosecutor sought for dismissal of the petitions.
11. In the petition filed by Mr.Suresh Kumar Mittal/A4 in Criminal Appeal No.17806 of 2017, he admits that he was posted for the first time as Commissioner of Income Tax in October 2012 and on account of his posting, he would require to stay in Chennai. When he planned to visit Kodaikanal in the year 2013 along with his wife, he opted to stay in a hotel for his convenience instead of Government Guest House and hence he sought the help of one Ramarao, who is living in the Income Tax Colony for the past 15 years and making bookings for the Travel and Stay for the officers of the Income Tax Department and acts as a travel agent. Similarly, he admits that he visited Ooty and Coimbatore between 26.09.2013 to 29.12.2013 and his stay and travel was arranged through Ramarao. He also admits about his stay at Mahabalipuram in GRT Raddison Hotel between 03.02.2014 and 16.03.2014 and the hotel bookings was done by Ramarao. He has also made a caveat petition that he was not aware of the fact that the said Ramarao is the employee of M/s.Sanjay Bhandari & Co. and he has also stated that the payments were made by him through Ramarao. In the light of the above said submission, if FIR is read, one could easily see that a prima facie case has been made out by the prosecution to register the case and investigate in the light of the fact that the FIR indicates that Suresh Kumar Mittal, who is arrayed as A4 has stayed in hotels and obtained pecuniary advantage to the tune of Rs.1,38,388/- and Sanjay Bhandari-A1, A2 and A3(names) are the Chartered Accountants, who are instrumental to arrange the accommodation for the petitioners through their agent. It is unfortunate that the earlier petition filed by Mohana Murali, co-accused and allowed by this Court has not taken note of the legal pronouncements of the Supreme Court regarding quashing the FIR and also failed to consider the submissions of the CBI. Hence, this Court is not constrained to held that the ratio laid down in Crl.O.P.No.2159 of 2017 dated 15.05.2017 has no binding. In this regard, this Court wish to cite the below judgment of the Hon'ble Supreme Court, which is unambiguous treatment laid down in the matter of applying the rule of Per Incuriam in the case of Govt. of Andhra Pradesh and Anr Vs. B.Satyanarayana Rao(Dead) by Lrs.., reported in 2000(4)SCC 262 as follows:
Rule of Per Incuriam can be applied where a Court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. We therefore, find that the rule of per incuriam cannot be invoked in the present case. Moreover a case cannot be referred to a larger Bench on mere asking of a party. A decision by two judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to laying down a correct law.
12. Insofar as the petitioner in Crl.O.P.No.18058 of 2017, T.N.Prakash/A5 is concerned, in this case he has submitted that on account of posting as Assistant Commissioner in Chennai in the year 2011, he stayed at Chennai and in the month of March 2013, he planned to visit Hotel Radisson with his family for which he sought the help of Ramarao and through him a room was booked for him at Hotel Raddisson Resort Temple Bay for the petitioner and his family between 29.03.2013 and 01.04.2013. He paid for his stay in cash to Ramarao. Similarly, he booked accommodation at Hotel viz., The Lotus in T.Nagar through Ramarao during the month of November 2014 and he settled the bill in cash through Ramarao. It is also candidly admitted by the petitioner, that the said Ramarao arranged for a cab at Secunderabad, when the petitioner was on a visit to Secunderabad. On his return from Secunderabad, he paid the bill in cash to Ramarao and as like the other petitioner, this petitioner also failed ignorance of the relationship between Ramarao and M/s.Sanjay Bhandhari & Co., the Chartered Accountants firm, which was dealing with the I.T. Department.
13. Infact, the learned Judge has failed to refer to the above judgment since the learned counsel for the petitioner has referred the judgment of Supreme Court rendered in the case of State of Bihar Versus Kalika Kuer @Kalika Singh & Others reported in CDJ 2003 SC 508. Infact, this Court is firm in its understanding of law with the principle of Per Incuriam or precedent will apply as only there is a difference of opinion regarding the application of law and not on facts. Here, in this case, the earlier judgment relied upon by the petitioner has not gone into the complete facts placed by the prosecution. While relying upon the principle laid down in the case of State of Haryana and others Vs. Bhajanlal and another reported in 1992 Supp 1 SCC 335, the learned judge ought to have looked into the FIR and other materials if any, accompanying the FIR discloses the cognizant offence justifying the investigation by Police under
Section 154(1) of the Code and even if the FIR is taken in their face value and accepted in their entirety did not prima facie constitute any of fence.
14. It is not the format of the FIR, but the content of the FIR is relevant to find out whether there is a prima facie case made out. A mere omission in the FIR format to mention about the preliminary evidence conducted by the CBI will not render the FIR illegal.
15. The manual of CBI is a shield for honest officers to be protected from unscrupulous complaints and it cannot be a sword for public servant, who has misconducted himself and for some inadvertence mistake that is the reason while considering CBI manual vis-a-vis, the investigation procedure laid down under the code, the Supreme Court in Nirmal Singh Kahlon Vs. State of Punjab reported in 1 SCC 441 has stated as follows:
122.Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis-a-vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith.
16. The guidelines mentioned in the manual should be substantially complied with and cannot be blatantly flouted. From the records produced by the respondent, it is clear that the preliminary enquiry has been registered on 19.02.2015 and the subsequent enquiry which has been conducted for more than one year, has lead to collection of evidence incriminating the petitioners and other accused. Hence, regular case has been registered as FIR on 20.06.2016. It is necessary to extract the following view of the Supreme Court in a case of this nature reported in 2013 SC 1682 in the case of NiranjanHemchandra Sashittal and Anr. Vs. State of Maharashtra, which is as follows:
19. ..........The parliament intended to eradicate corruption and provide deterrent punishment when criminal culpability is proven. The intendment of the legislature has an immense social relevance. In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small and in certain cases, it is extremely high. The gravity of the offence in such a case, in or considered opinion, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenet of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law. Be it noted, system of good governance is founded on collective faith in the institutions. If corrosions are allowed to continue by giving allowance to quash the proceedings in corruption cases solely because of delay without scrutinizing other relevant factors, a time may come when the unscrupulous people would foster and garner the tendency to pave the path of anarchism.
20. It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality. Therefore, the relief for quashing of a trial under the 1988 Act has to be considered in the above back drop.
17.Omission or non reference of the registration of preliminary enquiry in the F.I.R ought to be reconciled, in the light of the incriminating materials collected in the course of the preliminary enquiry which has formed the base for registration of regular case against these petitioners.
18.Unfortunately, the judgment in Criminal Original Petition No.2159 of 2017 has neither considered this judgment of the Supreme Court nor the factual materials placed before it by the prosecution.
19. For the reasons stated above, this Court finds that there is no reason to interfere with the investigation of the respondent pursuant to FIR.No.RC MA1 2016 A 0019. Hence, these Criminal Original Petitions are dismissed.