REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1662 OF 2019 (ARISING OUT OF SLP (CRIMINAL) NO. 3632 OF 2019)

THE STATE OF TELANGANA .....APPELLANT(S)

VERSUS

SRI MANAGIPET @ MANGIPET SARVESHWAR  REDDY .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO. 1663 OF 2019 (ARISING OUT OF SLP (CRIMINAL) NO. 4074 OF 2019)

J U D G M E N T

HEMANT GUPTA, J.

1. The order dated 24th December, 2018 passed by the High Court of

Judicature at Hyderabad is the subject matter of challenge in the

present appeals, one by the State and the other by the Accused

Officer.

2. The High Court  partly  allowed the petition filed by the Accused

Officer under Section 482 of the Code of Criminal Procedure, 19731

qua the proceedings arising out of Crime No. 28/ACB-CIU-HYD/2011

1  for short, ‘Code’

1

dated 9th November, 2011.

3. Such FIR was registered on the basis of the statement given by Ch.

Sudhakar, Deputy Superintendent of Police2 at about 10 am.  The

FIR reads as under:

“On receipt of credible information that Sri. Managipet @ Mangipet  Sarveshwar Reddy S/o. Late Narsimha Reddy, Age 51 years, Occ: OSD, Rang Reddy District, Vikarabad R/o Flat  No.  401,  Venkatadri  Apartments,  Behind HPCL Petrol  Pump,  Gachibowli,  Hyderabad  is  a  native  of Chilkatonipally  (V)  Veltoor  (Post),  Wanaparthy  Tq., Mahaboobnagar District.   The S.O.  joined Govt.  service on 19-09-1985 as Sub Inspector of Police and promoted as Inspector of Police on 04-04-1995 and Dy. Supdt. of Police,  in  the  year  2007.   He  worked  as  SI  at Rayadurgam,  Hayathnagar,  Malkajigiri,  as  Circle Inspector  at  Huzurnagar  of  Nalgonda  District  Narsingi, Uppal,  Rajendranagar  of  Cyberabad  Commissionerate, R.R. District as ACP., Rajendranagar for about 4 years and presently  working  as  OSD,  Ranga  Reddy  District, Vikarabad.

During  the  period  of  his  service  he  acquired  Six Multistoried  Buildings,  One  Multistoried  commercial complex, 27 plots and 26 Acres of land at Hyderabad, Ranga  Reddy  and  Mahboobnagar  Districts  and  one Scorpio car, one Hyundai Verna car and Maruti Car, all worth Rs.3,55,61,500/-.

The probable income of the A.O. and his family members from all their known sources of income when calculated roughly  would  be  Rs.60,00,000/-.   The  probable expenditure of  the accused officer including household expenditure  and  expenditure  on  children  education  is tentatively estimated at Rs.23,00,000/-.

The likely savings of the accused officer is Rs.37,00,000/- i.e., the probable income of Rs. 60,00,000 - minus the probable expenditure of Rs.23,00,000/-.

As  against  the  likely  savings  of  Rs.37,00,000/-  the Accused Officer has acquired assets approximately worth Rs.3,55,61,500/-.   Thus,  the  A.O.  is  in  possession  of assets worth Rs.3,18,61,500/- which are disproportionate

2  for short, ‘DSP’

2

to the known sources of his income for which he cannot satisfactorily  account  for  and  thereby  committed  the offence  punishable  U/s  13(2)  r/w  13(1)(e)  of  P.C.  Act 1988.

Permission  has  been  obtained  from  the  competent authority to register a case against the above official U/s 13(2)  r/w 13(1)(e)  of  the Prevention of  Corruption Act, 1988.

Hence, the FIR.”

4. A charge sheet was filed on 9th October, 2017 on completion of the

investigations. As per the Report, the Accused Officer was said to

be in  possession of  assets  worth  Rs.3,18,61,500/-  alleged to  be

disproportionate to his known sources of income.  The total worth

of the property against his savings of Rs.37 lakhs was found to be

approximately  Rs.3,55,61,500/-.   During  the  investigations,  as

many as 114 witnesses were examined.  Ch. Sudhakar, DSP, CIU,

ACB, Hyderabad and five more investigating officers conducted the

investigations and prepared the final report.   

5. The High Court in a petition for quashing of the charge sheet, held

that there was no authorization to register the crime and that the

informant cannot be the investigating officer and, thus, quashed

the same.  The State is aggrieved against the said two findings

whereas,  the Accused Officer has challenged the findings of  the

High Court not accepting the grounds pressed by him in seeking

the quashing of  the charge sheet  -  that  there is  no preliminary

inquiry  before  the  registration  of  the  crime;  that  there  is  no

sanction  and  that  there  is  a  delay  in  the  completion  of  the

3

investigation  which  has  prejudiced  the  rights  of  the  Accused

Officer.

6. Ms. Bina Madhavan, learned counsel for the State submitted that

the  Accused Officer  joined  as  Sub Inspector  on  19th September,

1985 and was promoted as Inspector on 4th April,  1997. He was

further promoted as DSP in the year 2007.  In pursuance of the FIR

filed, a draft final report was prepared on 30th April, 2015 but the

same was submitted on 9th October, 2017 after the Accused Officer

retired  on  31st May,  2017.   Section  17  of  the  Prevention  of

Corruption Act, 19883 pertains to investigation into cases under the

Act.  A Police officer not below the rank of Inspector, authorized by

the  State  Government  by  general  or  special  order,  may  also

investigate any such offence.  An offence under clause (e) of sub-

section (1) of Section 13 of the Act cannot be investigated without

an order of the Police Officer not below the rank of Superintendent

of Police.  Section 17 of the Act reads as under:

“17.   Persons  authorised  to  investigate.— Notwithstanding  anything  contained  in  the  Code  of Criminal  Procedure, 1973 (2 of 1974), no police officer below the rank,— a) xx xx xx

b) xx xx xx

c) elsewhere, of a Deputy Superintendent of Police or a police  officer  of  equivalent  rank,  shall  investigate  any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:  

3  for short, ‘Act’

4

Provided that if a police officer not below the rank of an  Inspector  of  Police  is  authorised  by  the  State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class,  as  the  case  may  be,  or  make  arrest  therefor without a warrant:  

Provided further that an offence referred to in clause (e)  of  sub-section  (1)  of  section  13  shall  not  be investigated  without  the  order  of  a  police  officer  not below the rank of a Superintendent of Police.”

7. Learned counsel for the State referred to Government Order No.

3168 dated 24th May, 2008 re-employing Sri  K. Sampath Kumar,

Joint  Director,  Anti-Corruption  Bureau as  Officer  on Special  Duty

after his superannuation on 31st May, 2008 for a period of one year.

Such order of re-employment was renewed on 5th March, 2009; 13th

May, 2010 and on 30th May, 2011, each extending the term of re-

employment by one year.  It was on 9th November, 2011, the Joint

Director,  CIU  &  SES,  Anti-Corruption  Bureau  authorized  Ch.

Sudhakar, DSP to register a case against the Accused Officer under

Section 13(2) read with Section 13(1)(e) of the Act and inspect any

premises,  bankers  books of  the Accused Officer or  of  any other

person concerned with the affairs of the Accused Officer and take

or  cause  to  be  taken  certified  copies  of  the  relevant  entries

therefrom for the purpose of investigation.  It is in pursuance of

such  authorization  that  the  FIR  was  lodged,  premises  were

searched and the Accused Officer was arrested.   

8. The High Court relied upon the judgment reported as Union Public

5

Service Commissioner v. Girish Jayanti Lal Vaghela & Ors.4 to

hold that the statutory rules do not permit to extend the age of

superannuation without compliance of Article 16 of the Constitution

of India.  A person who was appointed for a short  period of  six

months or till availability of a regular selectee, whichever is earlier

is practically appointed on a contract basis and could not be called

a  government  servant.   The  High  Court  returned  the  following

findings:

“21.  It is neither pleaded nor is there any material to show that the appointment of  Respondent 1 had been made  after  issuing  public  advertisement  or  the  body authorised  under  the  relevant  rules  governing  the conditions  of  service  of  Drugs  Inspectors  in  the  Union Territory  of  Daman  and  Diu  had  selected  him.  His contractual appointment for six months was dehors the rules. The appointment was not made in a manner which could even remotely be said to be compliant with Article 16  of  the  Constitution.  The  appointment  being  purely contractual,  the  stage  of  acquiring  the  status  of  a government servant had not arrived. While working as a contractual employee Respondent 1 was not governed by the relevant service rules applicable to Drugs Inspector. He  did  not  enjoy  the  privilege  of  availing  casual  or earned leave. He was not entitled to avail the benefit of general  provident  fund  nor  was  he  entitled  to  any pension  which  are  normal  incidents  of  a  government service.  Similarly,  he  could  neither  be  placed  under suspension entitling him to a suspension allowance nor could  he  be  transferred.  Some  of  the  minor  penalties which can be inflicted on a government servant while he continues  to  be  in  government  service  could  not  be imposed upon him nor was he entitled to any protection under Article 311 of  the Constitution.  In  view of  these features it is not possible to hold that Respondent 1 was a government servant.”

9. We find glaring illegality in the line of reasoning and the findings

4  (2006) 2 SCC 482

6

recorded by the High Court.  Girish Jayanti Lal Vaghela was a

case where Shri Vaghela was appointed on a short term contract

basis, on a fixed salary till a candidate was selected by the Union

Public Service Commission on a regular basis.  The advertisement

to fill up the post on regular basis contemplated relaxation of five

years in age for government servants.  He claimed relaxation in

age being a government servant for appointment on regular basis.

It  was  held  that  it  was a  contract  which  governed his  terms of

service and not the rules framed under the proviso to Article 309 of

the Constitution of India in as much as he was not appointed in

accordance  with  the  Rules  and,  thus,  was  not  eligible  for  any

relaxation in upper age for appointment on a regular basis in a post

advertised by Union Public Service Commission.   

10. Article  310  of  the  Constitution  contemplates  that  except  as

expressly provided, every person who is a member of a defence

service or of a civil service of the Union or of an all-India service or

holds any post connected with defence or any civil post under the

Union, holds office at the pleasure of the President. In respect of

the State Services, however, he or she holds office at the pleasure

of the Governor.  In the present case, Sri K. Sampath Kumar was re-

employed for  a period of  one year by the State Government  in

exercise of powers conferred under Article 162 of the Constitution

of India.  There is no prohibition in any of the service rules that

there cannot be any re-employment of a person who was once in a

civil service of either the Center or the State.   

7

11. Entry 2 of List II of the State List is the Police (including railway and

village  police)  subject  to  the  provisions  of  Entry  2A  of  List  I.

Therefore,  various  facets  of  Policing  in  the  State  fall  within  the

legislative competence of the State and the re-employment of a

retired personnel who was a member of Indian Police Service, falls

within the executive power of the State.  As a re-employed officer,

he was holding a civil post as his salary was being paid from the

State Exchequer.  He was discharging duties and responsibilities in

the Anti-Corruption Bureau.  

12. In P.H. Paul Manoj Pandian v. P. Veldurai5, it has been held that

the executive power of the State is coterminous with the legislative

power  of  the  State  Legislature  i.e.  if  the  State  Legislature  has

jurisdiction  to  make  law  with  respect  to  a  subject,  the  State

executive can make regulations and issue government orders with

respect to it.  This Court held as under:

"48.  The powers of the executive are not limited merely to the carrying out of the laws. In a welfare State the functions of the executive are ever widening, which cover within their ambit various aspects of social and economic activities. Therefore, the executive exercises power to fill gaps  by  issuing  various  departmental  orders.  The executive  power  of  the  State  is  coterminous  with  the legislative power of the State Legislature. In other words, if the State Legislature has jurisdiction to make law with respect  to  a  subject,  the  State  executive  can  make regulations and issue government orders with respect to it,  subject,  however,  to  the  constitutional  limitations. Such  administrative  rules  and/or  orders  shall  be inoperative  if  the  legislature  has  enacted  a  law  with respect  to  the  subject.  Thus,  the  High  Court  was  not justified in brushing aside the Government Order dated

5  (2011) 5 SCC 214

8

16-11-1951  on  the  ground  that  it  contained administrative instructions.”

13. In Bishambhar Dayal Chandra Mohan & Ors. v. State of Uttar

Pradesh & Ors.6, it was held that the executive power of the State

Government cannot be circumscribed if it does not go against the

provisions of the Constitution or any law.  The Court held as under:

"20.   ……………..  In Ram  Jawaya  Kapur v. State  of Punjab [AIR 1955 SC 549 : (1955) 2 SCR 225 : 1955 SCJ 504] Mukherjea, C.J., dealt with the scope of Articles 73 and 162 of  the  Constitution.  The learned Chief  Justice observed that  neither  of  the two Articles  contains any definition as to what the executive function is or gives an exhaustive  enumeration  of  the  activities  which  would legitimately  come  within  its  scope.  It  was  observed: “Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.” It is neither necessary nor possible to give an exhaustive enumeration of  the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution.  In  other  words,  the  State  in  exercise  of  its executive  power  is  charged  with  the  duty  and  the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of  its  executive power cannot  be circumscribed.  If  there  is  no  enactment  covering  a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions,  until  the  legislature  makes  a  law  in  that behalf.  Otherwise,  the administration would come to a standstill.”

14. Sri K. Sampath Kumar was re-employed initially for a period of one

year after his retirement.  He was not being recruited for holding a

civil post for the first time which may warrant compliance of rigour

of Article 16 of the Constitution. He had crossed all bridges, when

6  (1982) 1 SCC 39

9

he was appointed and discharged duties before attaining the age of

superannuation. Such re-employment by the State is in exercise of

the powers conferred under Article 162 of the Constitution of India.

Such executive powers of the State do not contravene any other

statutory  provisions;  therefore,  re-employment  in  this  regard  is

supplementing  the  statutory  rules  and  regulations  and  not

supplanting  them.   Therefore,  Sri  K.  Sampath  Kumar  has

discharged the duties of Joint Director in the Anti-Corruption Bureau

in exercise of the powers conferred by the State Government.   

15. We further find that Sri K. Sampath Kumar’s acts whilst discharging

the  duties  of  Joint  Director  in  the  Anti-Corruption  Bureau  were

within the scope of the assumed official authority in public interest

and  not  for  his  own  benefit.  Therefore,  acts  undertaken  in  this

regard by the officer will  be taken to be valid.   This  Court  in  a

judgment reported as  Gokaraju Rangaraju  v.  State of Andhra

Pradesh7 held as under:

“17.  A judge, de facto, therefore, is one who is not a mere  intruder  or  usurper  but  one  who  holds  office, under  colour  of  lawful  authority,  though  his appointment is defective and may later be found to be defective.  Whatever  be  the  defect  of  his  title  to  the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure.  Such is  the de facto doctrine,  born of  necessity and  public  policy  to  prevent  needless  confusion  and endless mischief…

19.  In  our  view,  the  de  facto  doctrine  furnishes  an answer  to  the  submissions  of  Shri  Phadke  based  on

7   (1981) 3 SCC 132

10

Section 9 of the Criminal Procedure Code and Article 21 of the Constitution. The judges who rejected the appeal in one case and convicted the accused in the other case were not mere usurpers or intruders but were persons who  discharged  the  functions  and  duties  of  judges under colour of lawful authority. We are concerned with the office that the Judges purported to hold. We are not concerned with the particular incumbents of the office. So long as the office was validly created, it matters not that the incumbent was not validly appointed. A person appointed  as  a  Sessions  Judge,  Additional  Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session and his judgments and orders would be those of the Court of Session. They would continue to be valid as the judgments and orders of  the  Court  of  Session,  notwithstanding  that  his appointment to such Court might be declared invalid. On that account alone, it  can never be said that the procedure prescribed by law has not been followed. It would be a different matter  if  the constitution of  the court  itself  is  under challenge.  We are not concerned with such a situation in the instant cases. We, therefore, find no force in any of the submissions of the learned Counsel.”

16. The aforesaid  judgment  relies  upon  Pulin Behari  Das v. King

Emperor8, wherein Justice Mookerjee held the following:-

“The  doctrine  that  the  acts  of  officers de facto performed  by  them  within  the  scope  of  their assumed ??? authority in the interest of the public or third  persons  and  not  for  their  own  benefit,  are generally as valid and binding as if they were the acts of officers de jure, dates as far back as the Year-Books, and  it  stands  confirmed,  without  any  qualification  or exception,  by a long line of  adjudications.  Viner  says “acts  done  by  an  officer de  facto and  not de  jure are good,  for the law favours one in a refuted authority” (Abridgment, Tit. Officers and Officers G. 4). In fact the question  for  determination  in  cases  involving  the application of  the de facto doctrine,  is  not,  as  a rule, whether  the  challenged acts,  assuming the officer to be de facto, as such are valid, but whether the person whose  title  is  questioned  is  or  was  really  a de facto officer.

8  1911 SCC OnLine Cal 159 : (1911-12) 16 CWN 1105

11

xx xx xx

It  is  not  necessary  for  our  present  purposes  to investigate  exhaustively  all  the  qualifications  or limitations subject to which the de facto doctrine has to be applied. The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity,  to protect the interest of the public  and  the  individual  where  those  interests  were involved in  the official  acts  of  persons exercising the duties  of  an  office without  being  lawful  Officers.  The doctrine in fact is necessary to maintain the supremacy of  the  law  and  to  preserve  peace  and  order  in  the community at large. Indeed, if any individual or body of individuals  were permitted at  his  or  their  pleasure to collaterally  challenge  the  authority  of  and  to  refuse obedience  to  the  Government  of  the  State  and  the numerous functionaries through whom it exercised its various powers, on the ground of irregular existence or defective title, insubordination and disorder of the worst kind  would  be  encouraged.  For  the  good  order  and peace of society their authority must be upheld until in some regular  mode  their  title  is  directly  investigated and  determined,  [See  the  observations in Scadding v. Lorant [???]  and Norton v. Shelby County [118 U.S. 425 (1886).]  In the matter now before us,  the  sanction  under  sec.  196  of  the  Criminal Procedure  Code  was  granted  by  the de  facto Local Government and the cognizance of the case has been taken by the de facto Sessions Judge. In my opinion, it is not open to the Appellants to question collaterally the legality of the conviction upon the allegation that the Local  Government was irregularly constituted and the Sessions Judge irregularly appointed.  The first  ground upon  which  the  legality  of  the  trial  is  assailed  must consequently be overruled.”  

17. The  de facto doctrine as encapsulated above has been reiterated

by this Court, even in the context of an executive appointment, in

the  judgment  reported  as  Pushpadevi  M.  Jatia  v.  M.  L.

Wadhawan, Additional Secretary, Government of India and

Ors.9. In this case, the Additional Secretary to the Government of

9  (1987) 3 SCC 367

12

India had detained Mohanlal Jatia vide a Government order under

sub-section  (1)  of  Section  3  of  the  Conservation  of  Foreign

Exchange  and  Prevention  of  Smuggling  Activities  Act,  1974,  on

being satisfied that  it  was necessary  to  detain  him.  Herein,  the

Additional  Secretary  relied  on  statements  recorded  by  one  R.C.

Singh whom the appellant contended was not a “gazetted officer”

of enforcement under FERA, and therefore statements recorded by

the officer could not be relied upon to detain him. It was discussed:

“17. In any event, the learned Counsel further contends that R.C. Singh was clothed with the insignia of office and he was purporting to exercise the functions and duties of a gazetted officer of Enforcement under Section 40(1) of the  FERA  and  therefore  the  de  facto  doctrine  was attracted.  He  relies  upon  the  decision  of  this  Court in Gokaraju Rangaraju v. State of Andhra Pradesh [(1981) 3  SCC  132:  1981  SCC  (Cri)  652:  (1981)  3  SCR  474] enunciating the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief.  In  other  words,  he  contends  that  where  an officer  acts  under  the  law,  it  matters  not  how  the appointment  of  the  incumbent  is  made  so  far  as  the validity of his acts are concerned.

18. We are inclined to the view that in this jurisdiction there is a presumption of regularity in the acts of officials and that the evidential burden is upon him who asserts to the contrary. The contention that R.C. Singh was not a gazetted officer  of  Enforcement  within  the  meaning of Section  40(1)  of  the  FERA  appears  to  be  wholly misconceived besides being an afterthought. The validity of  appointment  of  R.C.  Singh  to  be  an  officer  of Enforcement under this Act cannot be questioned…….

20. … Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions. The official acts of such persons are recognised as valid under the de facto doctrine, born of  necessity  and  public  policy  to  prevent  needless confusion  and  endless  mischief.  In Gokaraju  Rangaraju

13

case [(1981) 3 SCC 132 : 1981 SCC (Cri) 652 : (1981) 3 SCR  474]  Chinnappa  Reddy,  J.,  explained  that  this doctrine  was  engrafted  as  a  matter  of  policy  and necessity to protect the interest of the public.”  

18. Further, a Full Bench of Kerala High Court in a judgment reported as

P.S. Menon v.  State of Kerala10 held that the  de facto  doctrine

was engrafted as a matter of policy and necessity to protect the

interest  of  the  public  as  well  as  the  individuals  involved  in  the

official capacity of persons exercising the duty of an officer without

actually being one in strict point of law.  These officers may not be

the officers de jure but by virtue of particular circumstances, their

acts should be considered valid as a matter of public policy.   

19. In another Division Bench judgment reported as  P. Mahamani  v.

Tamil Nadu Magnesite, Ltd., Salem & Ors.11, the Madras High

Court held as under:   

“12.  An officer de facto is one who by some colour or right is in possession of an office and for the time being performs his  duties  with  public  acquiescence,  though having no right in fact. Whereas an intruder is one who attempts  to  perform  the  duties  of  an  office  without authority  of  law,  and  without  the  support  of  public acquiescence. No one is under obligation to recognise or  respect  the  acts  of  an  intruder,  and  for  all  legal purposes they are absolutely void. But for the sake of order  and regularity,  and to prevent  confusion in the conduct  of  public  business  and in  security  of  private rights,  the acts of officers de-facto arc not suffered to be questioned because of the want of legal  authority except  by  some  direct  proceeding  instituted  for  the purpose.  In  all  other  cases  the  acts  of  an  officer de facto are as valid and effectual, while he is suffered to retain the office as though he were an officer by right, and the same legal consequences will flow from them

10  AIR 1970 Ker 165 11  (1993) 2 LLN 353

14

for  the  protection  of  the  public  and  of  third  parties. There  is  an  important  principle,  which  finds  concise expression  in  the  legal  maxim  that  the  acts  of officers de  facto cannot  be  questioned  collaterally.  A person may be entitled to his designation although he is not a true and rightful incumbent of the office, yet he is no  more  usurper  but  holds  it  under  colour  of  lawful authority. The de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest  of  the  public  and  the individual  where these interests  were  involved  in  the  official  act  of  persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and lo preserve peace and order  in  the  community  at  large.  Indeed,  if  any individual or body of individuals were permitted, at his or their pleasure, lo collaterally challenge the authority of  and lo refuse obedience lo the Government of the State and the numerous functionaries through whom it exercised its various powers on the ground of irregular existence of defective title insubordination and disorder of the worst kind would be encouraged. For the good order and peace of society, their authority must be up held  until  in  some regular  mode their  title  is  directly investigated  and  determined.  When  one  holds  office under colour of lawful authority, whatever be the defect of his title lo the office, acts done by him when he was clothed  with  the  powers  and  functions  of  the  office, albeit unlawfully, have the same efficacy and acts done by an officer de jure. The defective appointment of a de facto officer may be questioned directly in a proceeding lo which he may be a party but it cannot be permitted to  be  questioned  in  a  litigation  between  two  private litigants,  a  litigation  which  is  of  no  concern  or consequence  lo  the  officer  concerned.  So  the  writ petitioner  cannot  be heard to say that  Sri  Madhavan Nair, the second respondent had no authority to preside over the meeting of the Board of Directors wherein it was resolved lo place him under suspension and initiate disciplinary action.”

20. The de facto doctrine was reiterated yet again in a recent Supreme

Court judgment reported as Veerendra Kumar Gautam & Ors. v.

Karuna Nidhan Upadhyay & Ors.12.

12  (2016) 14 SCC 18

15

 21. Therefore, we find that Sri K. Sampath Kumar was discharging the

duties  of  Joint  Director  in  Anti-Corruption  Bureau  under  the

authority conferred by the State.  The authorisation in favour of Ch.

Sudhakar was issued when he was performing his duties in public

interest and not for his own benefit.  Therefore, such authorisation

is valid and binding as if it was an act of an officer de jure.   

22. We further find that the High Court, while deciding a petition for

quashing of proceedings under Section 482 of the Code, could not

have commented upon the nature of employment of Sri K. Sampath

Kumar, as such a question does not fall within the jurisdiction of the

High Court whilst deciding the aforementioned petition.   

23. Sri K. Sampath Kumar has authorised Ch. Sudhakar and the final

report  had  been  filed  after  the  investigation  conducted  by  the

latter, in terms of clause (c) of Section 17 of the Act. In this regard,

it  cannot  be said that  the investigation was not  conducted in  a

manner  contemplated  under  law.   Thus,  Ch.  Sudhakar  was  an

authorized Officer, competent to investigate and file a report for

the offences under the Act including of an offence under Section

13(1)(e) of the Act.   

24. Another finding recorded by the High Court is that the informant

cannot be the investigating officer.  Such a finding is based upon

Ch.  Sudhakar  being  both  the  informant  and  the  initiator  of  the

investigations.  The High Court derives support from the judgment

16

of this Court reported as Mohan Lal v. State of Punjab13 to hold

that a fair investigation is the very foundation of fair trial, which

necessarily postulates that the informant and the investigator must

not be the same person.     

25. The said judgment however has been held to be prospective in the

judgment  reported  as  Varinder  Kumar  v.  State  of  Himachal

Pradesh14 wherein, this Court has succinctly put as under:

"18.   The  criminal  justice  delivery  system,  cannot  be allowed to veer exclusively to the benefit of the offender making  it  uni-directional  exercise.  A  proper administration  of  the  criminal  justice  delivery  system, therefore  requires  balancing  the  rights  of  the  accused and the prosecution, so that the law laid down in Mohan Lal (supra) is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of  all  other  considerations.  We  therefore  hold  that  all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by the individual facts of the case.”

26. Thus,  we  find  that  the  orders  of  the  High  Court  to  quash  the

proceedings against the Accused Officer are not sustainable and

are consequently, set aside.   Accordingly, the appeal filed by the

State is allowed and the matter is remitted back to the learned trial

court for further proceedings in accordance with law.   

27. Coming to the appeal filed by the Accused Officer, Mr. Guru Krishna

Kumar,  learned  senior  counsel  vehemently  argued  that  a

preliminary inquiry before the registration of a crime is mandatory.

Reference was made to a judgment reported as Lalita Kumari v.

13  (2018) 17 SCC 627 14  2019 SCC OnLine SC 170

17

Government of Uttar Pradesh & Ors.15 as well as the judgment

reported  as  State  by  Karnataka  Lokayukta  Police  Station,

Bengaluru v. M.R. Hiremath16.  

28. In  Lalita Kumari, the Court has laid down the cases in which a

preliminary inquiry is warranted, more so, to avoid an abuse of the

process  of  law  rather  than  vesting  any  right  in  favour  of  an

accused. Herein, the argument made was that if a police officer is

doubtful about the veracity of an accusation, he has to conduct a

preliminary inquiry and that in certain appropriate cases, it would

be  proper  for  such  officer,  on  the  receipt  of  a  complaint  of  a

cognizable  offence,  to  satisfy  himself  that  prima  facie,  the

allegations  levelled  against  the  accused  in  the  complaint  are

credible. It was thus held as under:-

“73. In terms of the language used in Section 154 of the Code,  the police  is  duty bound to  proceed to  conduct investigation  into  a  cognizable  offence  even  without receiving information (i.e. FIR) about commission of such an offence, if the officer in charge of the police station otherwise suspects the commission of such an offence. The  legislative  intent  is  therefore  quite  clear,  i.e.,  to ensure  that  every  cognizable  offence  is  promptly investigated in accordance with law. This being the legal position,  there  is  no  reason  that  there  should  be  any discretion or option left with the police to register or not to register an FIR when information is given about the commission  of  a  cognizable  offence.  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.”

15  (2014) 2 SCC 1 16  (2019) 7 SCC 515

18

29. The Court concluded that the  registration of an FIR is mandatory

under  Section  154  of  the  Code  if  the  information  discloses

commission of a cognizable offence and no preliminary inquiry is

permissible in such a situation. This court held as under:

“111. In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code, if  the information discloses commission of  a cognizable  offence  and  no  preliminary  inquiry  is permissible in such a situation.

ii)  If  the  information  received  does  not  disclose  a cognizable  offence  but  indicates  the  necessity  for  an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence,  the  FIR  must  be  registered.  In  cases  where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief  for  closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information  received  by  him  discloses  a  cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to  ascertain  whether  the  information  reveals  any cognizable offence.

vi)  As  to  what  type  and  in  which  cases  preliminary inquiry is to be conducted will depend on the facts and circumstances  of  each  case.  The  category  of  cases  in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

19

b) Commercial offences

c) Medical negligence cases

d) Corruption cases.”

30. It must be pointed that this Court has not held that a preliminary

inquiry  is  a  must  in  all  cases.  A  preliminary  enquiry  may  be

conducted  pertaining  to  Matrimonial  disputes/family  disputes,

Commercial offences, Medical negligence cases, Corruption cases

etc.  The judgment of this court in  Lalita Kumari does not state

that proceedings cannot be initiated against an accused without

conducting a preliminary inquiry.

31. In M.R. Hiremath, this Court set aside an order on an application

for  discharge under Section 239 of  the Code,  inter  alia, for  the

reason that a certificate under Section 65B of Evidence Act had not

been produced while relying upon the evidence of a spy camera.

An argument was raised that the spy camera has been given by

the investigating officer even before investigations were formally

started.  On the strength of such fact, an argument was raised by

Mr. Guru Krishna Kumar, learned counsel for the Accused Officer,

that  without  conducting  a  preliminary  inquiry  the  FIR  could  not

have been lodged.  This Court in  M.R. Hiremath held that when

the investigating officer had handed over the spy camera to the

complainant, the purpose was to ascertain,  in the course of  the

preliminary  inquiry,  whether  information  furnished  by  the

complainant could form the basis of lodging an FIR.  It was held to

be  a  preliminary  inquiry  to  ascertain  whether  the  information

20

revealed a cognizable offence.  The Court held as under:

“23.    In  the  present  case,  on  15-11-2016,  the complainant  is  alleged  to  have  met  the  respondent. During the course of the meeting, a conversation was recorded  on  a  spy  camera.  Prior  thereto,  the investigating officer had handed over the spy camera to the  complainant.  This  stage  does  not  represent  the commencement of the investigation. At that stage, the purpose was to ascertain, in the course of a preliminary inquiry, whether the information which was furnished by the complainant would form the basis of lodging a first information report. In other words, the purpose of the exercise  which was  carried out  on 15-11-2012 was a preliminary  enquiry  to  ascertain  whether  the information reveals a cognizable offence.”

32. The  said  judgment  does  not  help  the  learned  counsel  for  the

Accused  Officer.  The  scope  and  ambit  of  a  preliminary  inquiry

being  necessary  before  lodging  an  FIR  would  depend upon  the

facts of each case.  There is no set format or manner in which a

preliminary inquiry is to be conducted.  The objective of the same

is  only  to  ensure  that  a  criminal  investigation  process  is  not

initiated on a frivolous and untenable complaint.  That is the test

laid down in Lalita Kumari.   

33. In  the  present  case,  the  FIR  itself  shows  that  the  information

collected is in respect of disproportionate assets of  the Accused

Officer.  The purpose of a preliminary inquiry is to screen wholly

frivolous and motivated complaints, in furtherance of acting fairly

and objectively. Herein, relevant information was available with the

informant  in  respect  of  prima  facie  allegations  disclosing  a

21

cognizable offence.  Therefore, once the officer recording the FIR is

satisfied with such disclosure, he can proceed against the accused

even without conducting any inquiry or by any other manner on

the basis of the credible information received by him. It cannot be

said that the FIR is liable to be quashed for the reason that the

preliminary  inquiry  was  not  conducted.   The  same can  only  be

done if  upon a  reading of  the entirety  of  an FIR,  no offence is

disclosed. Reference in this regard, is made to a judgment of this

Court reported as State of Haryana v. Bhajan Lal17 wherein, this

Court held inter alia that where the allegations made in the FIR or

the  complaint,  even  if  they  are  taken  at  their  face  value  and

accepted  in  their  entirety,  do  not  prima  facie constitute  any

offence or make out a case against the accused and also where a

criminal proceeding is manifestly attended with mala fide and/or

where  the  proceeding  is  maliciously  instituted  with  an  ulterior

motive for wreaking vengeance on the accused and with a view to

spite him due to private and personal grudge.

34. Therefore, we hold that the preliminary inquiry warranted in Lalita

Kumari  is  not  required  to  be  mandatorily  conducted  in  all

corruption cases.  It has been reiterated by this Court in multiple

instances that the type of preliminary inquiry to be conducted will

depend on the facts and circumstances of each case. There are no

fixed  parameters  on  which  such  inquiry  can  be  said  to  be

conducted.   Therefore,  any  formal  and  informal  collection  of

17  1992 Supp (1) SCC 335

22

information disclosing a cognizable offence to the satisfaction of

the person recording the FIR is sufficient.  

35. We also do not find any merit in the argument that there has been

no sanction before the filing of the report.  The sanction can be

produced by  the  prosecution  during  the  course  of  trial,   so  the

same may not be necessary after retirement of the Accused Officer.

This Court in K. Kalimuthu v. State by DSP18 held as under:

“15. The question relating to the need of sanction under Section  197  of  the  Code  is  not  necessarily  to  be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any  stage  of  the  proceeding.  The  question  whether sanction is necessary or not may have to be determined from stage to stage…”

36. The High Court has rightly held that no ground is  made out for

quashing of the proceedings for the reason that the investigating

agency intentionally waited till the retirement of the Accused Offi-

cer.  The question as to whether a sanction is necessary to prose-

cute the Accused Officer,  a retired public  servant,  is  a  question

which can be examined during the course of the trial as held by

this Court in K. Kalimuthu.  In fact, in a recent judgment in Vinod

Kumar Garg v. State (Government of National Capital Terri-

tory of Delhi)19, this Court has held that if an investigation was

not conducted by a police officer of the requisite rank and status

required under Section 17 of the Act, such lapse would be an irreg-

ularity, however unless such irregularity results in causing preju-

18  (2005) 4 SCC 512 19  Criminal Appeal No. 1781 of 2009 decided on 27th November, 2019

23

dice, conviction will not be vitiated or be bad in law.  Therefore, the

lack of sanction was rightly found not to be a ground for quashing

of the proceedings.   

37. Mr. Guru Krishna Kumar further refers to a Single Bench judgment

of the Madras High Court in M. Soundararajan v. State through

the  Deputy  Superintendant  of  Police,  Vigilance  and  Anti

Corruption, Ramanathapuram20 to contend that amended provi-

sions of the Act as amended by Act XVI of 2018 would be applica-

ble as the Amending Act came into force before filing of the charge

sheet.  We do not find any merit in the said argument.  In the afore-

said case, the learned trial court applied amended provisions in the

Act which came into force on 26th July, 2018 and acquitted both the

accused from charge under Section 13(1)(d) read with 13(2) of the

Act.  The High Court found that the order of the trial court to apply

the amended provisions of the Act was not justified and remanded

the matter back observing that the offences were committed prior

to the amendments being carried out.  In the present case, the FIR

was registered on 9th November, 2011 much before the Act was

amended in the year 2018.  Whether any offence has been commit-

ted or not has to be examined in the light of the provisions of the

statute as it  existed prior to the amendment carried out on 26th

July, 2018.

20  Crl. A. (MD) No. 488 of 2018 and Crl. M.P. (MD) No. 8712 of 2018 decided on 30 th October, 2018.

24

38. In  view  thereof,  we  do  not  find  any  merit  in  the  reasonings

recorded by the High Court in respect of contentions raised by the

Accused Officer.  The arguments raised by the Accused Officer can-

not be accepted in quashing the proceedings under the Act.  Ac-

cordingly, Criminal Appeal No. 1663 of 2019 filed by the Accused

Officer is dismissed whereas Criminal Appeal No. 1662 of 2019 filed

by the State is allowed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; DECEMBER 06, 2019.

25