IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
WRIT PETITION NO.2510 OF 2012
Natubhai G. Patel ... Petitioner Vs.
The State of Maharashtra & anr. .... Respondents Mr.Mahesh Jethmalani, Sr. Adv. a/w Pranav Badekh i/b Ms.Chaitra Pawar for the Petitioner
Mr.K.V. Saste, APP, for Resp. No.1 - State
Mr.Rajesh Desai for the Respondent No.2 - CBI
CORAM: A.M. KHANWILKAR &
A.R. JOSHI, JJ.
1. Rule. By consent, Rule returnable forthwith and heard finally.
2. Heard Counsel for the parties. This petition is for quashing of FIR registered against the petitioner for offence punishable u/s 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988. The FIR is registered in respect of acquisition and possession of disproportionate assets than the known source of income of the vss 1 of 7 wp.2510.2012.sxw
petitioner for the financial years 2001 to 2009. In the FIR, it is mentioned that as against the income of Rs.1,22,68,613/- and loan amount of Rs.17,97,627/-, the petitioner has amassed assets to the tune of Rs.1,56,38,257/- and has incurred expenditure of Rs.2,07,03,417/-. On that basis, the disproportion of assets and expenditure combined together is stated to be to the tune of Rs.2,18,96,689/- than the known source of income.
3. The first point canvassed before us is that the FIR has been registered merely on the basis of some credible information as can be discerned from the statement in the FIR itself. No preliminary enquiry was conducted before the registration of the FIR which is the norm for registering offence against the public servant such as Member of Parliament, punishable under the provisions of Prevention of Corruption Act.
4. In response to this grievance, the respondents have stated on affidavit that it was not necessary to undertake preliminary enquiry before registration of a regular case. It is further stated that discreet verification was conducted and only after being satisfied about the factual position emerging from the said vss 2 of 7 wp.2510.2012.sxw
verification, it was decided to register FIR against the petitioner. The Counsel for the petitioner has pressed into service exposition of the Apex Court in para 17 in the case of P. Sirajuddin v. State of Madras, AIR 1971 SC 520. Indeed, in this judgment, it is emphasised that some suitable preliminary enquiry into the allegations by a responsible officer should be undertaken before proceeding in the matter against the public servant. To reassure ourselves that the so called discreet verification done by the respondents was suitable enquiry or otherwise, we called upon the respondents to produce the original file which would disclose the nature of enquiry conducted by the Department. Accordingly, the original file was produced before us in a sealed cover. We directed the sealed cover to be opened. We have perused the file. From the notings in the file, it is revealed that extensive verification has been done before articulating the FIR. From the movements of the file, it is obvious that the verification process commenced as back as from October, 2010 and only after collating the relevant documents and information, final decision was taken to register FIR on 21.2.2012 at the highest level. We have noticed that the verification done by the Department includes the collection of record from the Income Tax authorities and scrutiny thereof. It is vss 3 of 7 wp.2510.2012.sxw
not necessary to elaborate the nature of enquiry at this stage. Suffice it to observe that we are satisfied that suitable enquiry was conducted which has been described as discreet verification in the reply affidavit. As no defined procedure for conducting a preliminary enquiry in the Code or for that matter the Manual of CBI has been brought to our notice, we fail to understand as to how the enquiry undertaken by the Department can be said to be insufficient or cannot be treated as suitable enquiry preceding the registration of FIR. Suffice it to observe that the first grievance made by the petitioner that FIR has been registered without requisite preliminary enquiry, is devoid of merits.
5. Much emphasis was placed on the observations in the case of State of Haryana & Ors. vs. Ch.Bhajan Lal & Ors., AIR 1992 SC 604. However, for the view that we have taken, the dictum in the said decision will be of no avail to the petitioner in the fact situation of the present case.
6. The next argument of the petitioner is that the FIR attempts to manipulate the figures by mentioning lesser income of the petitioner and showing higher expenditure incurred by the vss 4 of 7 wp.2510.2012.sxw
petitioner during the relevant period. The petitioner for this purpose is relying on the Income Tax returns filed by him before the Income Tax authorities. However, the figures in the FIR are founded on the discreet verification done by the Department. The Department has prepared statements indicating the assets, income and expenditure of the petitioner being annexures A to E and the figures therein are on the basis of the documents collected during the discreet verification and scrutiny thereof. Those figures are consistent with the figures mentioned in the FIR. Whether those figures are accurate or otherwise, is a matter for investigation. The petitioner is free to give his explanation to the Investigating agency and if the explanation is found acceptable, there is no manner of doubt that the investigating agency would take that into account before filing appropriate report before the concerned Court. In our opinion, this is not a fit case of quashing of FIR. The original file is returned back to the Counsel appearing for the CBI.
7. At this stage, Counsel for the petitioner submits that the CBI could not have registered the FIR at Delhi as the entire cause of action has arisen within the Union Territory of Dadra & Nagar Haveli. As per section 154 of the Code, the FIR has to be vss 5 of 7 wp.2510.2012.sxw
registered with the local police station within whose jurisdiction the cause of action has arisen. According to the petitioner, even going by the FIR, it is amply clear that the offence is ascribable to financial years 2001 to 2009, when the petitioner was only a member of the Municipal Council of Silvassa.
8. In deference to the observations made by the Court, Counsel for the CBI, on instructions, stated that the Department will take steps to transfer the FIR for being registered with the concerned police station within the local jurisdiction of the Union Territory of Dadra & Nagar Haveli as the cause of action has arisen in Silvassa, ascribable to period 2001 - 2009. We accept this assurance. Accordingly, no order is necessary in this regard.
9. The Petition is dismissed as regards the relief of quashing of FIR. Petition disposed of accordingly.
10. At this stage, Mr.Jethmalani submits that the petitioner vss 6 of 7 wp.2510.2012.sxw
may consider of taking the matter in Appeal before the Apex Court, for which reason the ad-interim relief granted by this Court on 27.7.2012 be continued for a period of at least two weeks.
11. In the interest of justice, we accede to that request. Ordered accordingly.
(A.R. JOSHI, J.) (A.M. KHANWILKAR,J.) vss 7 of 7