Preliminary Enquiry By CBI In Corruption Cases Not Mandatory; Accused Cannot Demand It As Of Right: Supreme Court

The Supreme Court has held that preliminary enquiry by Central Bureau of Investigation in cases of corruption is not mandatory.

"In case the information received by the CBI, through a complaint or a "source information" discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence", the bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna observed.

"An FIR will not stand vitiated because a Preliminary Enquiry has not been conducted", the Court stated in the judgment.

The court clarified that if the CBI chooses not to hold a preliminary enquiry, the accused cannot demand it as a matter of right.

In this case, an FIR in a disproportionate assets case was quashed by Telangana High Court inter alia observing that the CBI should have conducted a Preliminary Enquiry under the Central Bureau of Investigation (Crime) Manual 2005 before registration of the FIR.

Before the Apex Court in appeal, the CBI contended that the CBI Manual does not make it mandatory to conduct a Preliminary Enquiry before the registration of the FIR and its provisions are directory. On the other side, it was contended that a Preliminary Enquiry before the registration of an FIR is a necessary requirement in cases of alleged corruption involving public servants, including those of Disproportionate Assets, since undue haste would lead to registration of frivolous and untenable complaints which could affect the careers of these officials.

Therefore, the question considered by the court was whether the CBI is mandatorily required to conduct a Preliminary Enquiry before the registration of an FIR in every case involving claims of alleged corruption against public servants?

Referring to various decisions including that of the Constitution Bench in Lalita Kumari v. Govt. of UP (2014) 2 SCC 1, the court observed that they do not mandate that a Preliminary Enquiry must be conducted before the registration of an FIR in corruption cases. An FIR will not stand vitiated because a Preliminary Enquiry has not been conducted, it said. The court added that the purpose of Lalita Kumari (supra) noting that a Preliminary Enquiry is valuable in corruption cases was not to vest a right in the accused but to ensure that there is no abuse of the process of law in order to target public servants.

Referring to CBI manual, the court noted the following: (i) a Preliminary Enquiry is registered when information (received from a complaint or "source information") after verification indicates serious misconduct on part of a public servant but is not enough to justify the registration of a Regular Case; and (ii) when the information available or after its secret verification reveals the commission of a cognizable offence, a Regular Case has to be registered instead of a Preliminary Enquiry being resorted to necessarily. Therefore, the court held thus:

"32. In view of the above discussion, we hold that since the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, PC Act or even the CBI Manual, for this Court to issue a direction to that affect will be tantamount to stepping into the legislative domain. Hence, we hold that in case the information received by the CBI, through a complaint or a "source information" under Chapter 8, discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence"

The court clarified that this does not take away the value of conducting a Preliminary Enquiry in an appropriate case.

"33. This has been acknowledged by the decisions of this Court in P Sirajuddin (supra), Lalita Kumari (supra) and Charansingh (supra). Even in Vinod Dua (supra), this Court noted that "[a]s a matter of fact, the accepted norm - be it in the form of CBI Manual or like instruments is to insist on a preliminary inquiry". The registration of a Regular Case can have disastrous consequences for the career of an officer, if the allegations ultimately turn out to be false. In a Preliminary Enquiry, the CBI is allowed access to documentary records and speak to persons just as they would in an investigation, which entails that information gathered can be used at the investigation stage as well. Hence, conducting a Preliminary Enquiry would not take away from the ultimate goal of prosecuting accused persons in a timely manner. However, we once again clarify that if the CBI chooses not to hold a Preliminary Enquiry, the accused cannot demand it as a matter of right. As clarified by this Court in Managipet (supra), the purpose of Lalita Kumari (supra) noting that a Preliminary Enquiry is valuable in corruption cases was not to vest a right in the accused but to ensure that there is no abuse of the process of law in order to target public servants", the court said.

Examining the case on merits, the bench set aside the  High Court judgment Court and held that CBI can continue with its investigation based upon the FIR.

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