Can't Test Veracity Of Material When Cognizable Offence Disclosed: Kerala High Court Dismisses Cop's Plea For Quashing Of Corruption Case

The Kerala High Court recently observed that a finding on the veracity of the material in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 CrPC to quash a criminal proceeding. 

Justice K. Babu observed that:

It is trite that the power of quashing criminal proceedings should be exercised with circumspection and that too, in the rarest of rare cases and it was not justified for this Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the Final report or the complaint. A finding on the veracity of a material relied on by the prosecution in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 Cr.P.C.

The petition was filed by a Police Officer seeking to quash an FIR registered by the Vigilance and Anti-Corruption Bureau alleging an offence punishable under Section 7 of the Prevention of Corruption Act, 1988. The complainant had alleged that the petitioner and the other police officer demanded bribe in connection with a case registered under Sections 498A and 323 read with Section 34 IPC at Kaduthuruthy Police Station.

The counsel appearing for the petitioner contended that no cognizable offence is made out against the petitioner in the FIS based on which the FIR has been registered. He also argued that no approval under Section 17-A of the Act was obtained in the matter and that the Investigating Officer ought to have implicated the bribe giver also as an accused in view of Section 8 of the Act. 

The court pointed out that Explanation 2 to Section 7 clearly states that it shall be immaterial whether such person being a public servant obtains or accepts or attempts to obtain the undue advantage directly or through a third person. Therefore, the Court observed that the contention raised by the petitioner that no offence under Section 7 of the Act is revealed in the allegations in the FIR cannot be sustained.  

The Court relying on Apex Court decisions in State of Telangana v. Managipet Alias Mangipet Sarveshwar Reddy, Charansingh v. State of Maharashtra and Central Bureau of Investigation v. Thommandru Hannah Vijayalakshmi rejected the contention that the preliminary enquiry was required to be conducted before registering FIR.

"The conclusion based on the precedents referred above is that where the relevant information regarding prima facie allegations disclosing a cognizable offence is made available, the officer concerned can register FIR and proceed further even without conducting a preliminary enquiry," said the bench.

The court also said that Section 17-A comes into play only when the alleged offence is relatable to any recommendation made or decision taken by a public servant in discharge of his official functions or duties.

Furthermore, the court pointed out that the essential requirement for attracting the offence under Section 8 is that the bribe giver induced a public servant to perform improperly a public duty or to reward such public servant for the improper performance of public duty.

In this case, the Court found nothing to show that the defacto complainant or any others related to him induced the petitioner to perform improperly any public duty or improper performance of any public duty.

"After all, this Court is not concerned with the question whether the bribe givers committed any offence or not. This Court is only concerned with the question whether the allegations contained in the FIS which formed the basis of the registration of the crime against the petitioner revealed any cognizable offence or not," the Court added. 

The bench said the Apex Court has laid down that for the purpose of exercising its power under Section 482 Cr.P.C. to quash criminal proceedings, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se.

Through subsequent decisions it has been further held that the High Court has no jurisdiction to examine the correctness or otherwise of the allegations, noted the bench.

"In the present case, the petitioner failed to convince this Court that the allegations levelled against him in the prosecution records made available do not disclose the ingredients of Section 7 of the Act. The correctness or otherwise of the allegations levelled in Ext.P1 is a matter to be tested during the course of the investigation," said the court, while dismissing the petition.

Advocates Renjith R, Anish Jose Antony and Anju Mohan appeared for the Petitioner. 

Senior Public Prosecutor Advocate Rekha S and Special Government Pleader (Vigilance) Advocate A. Rajesh appeared for the Respondents. 

Case Title: T. A. Abdul Sathar v. The State of Kerala and Ors. 

Citation: 2023 LiveLaw(Ker) 3

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