Prolonged Preliminary Enquiry Does Not Vitiate Criminal Proceedings Against Corruption Unless Accused Shows Prejudice Caused To Him: JKL High Court

The observations were made by Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had challenged the order passed by the Special Judge, Anti-corruption (CBI Cases), Kashmir, whereby charges for offences under Section 120-B read with Section 420 RPC and Section 4-H read with Sections 5(2) and Section 5(1)(d) of J&K Prevention of Corruption Act were framed against the petitioner and the co-accused.

The petitioner premised his challenge on the ground that as per the law laid down by the Supreme Court in Lalita Kumari v. Govt. of UP & Ors., (2014), the preliminary enquiry had to be completed within a period of seven days but in the instant case the preliminary enquiry has been conducted for about eight months whereafter the FIR came to be registered.

Adjudicating upon the matter Justice Dhar observed,

"It is true that in Lalita Kumari's case (supra), the Supreme Court has observed that preliminary enquiry should be completed within a period of seven days yet, having regard to the nature of offences punishable under the provisions of Prevention of Corruption Act, it is necessary to procure, peruse and scan necessary records which generally run into thousands of pages. It is practically impossible to conclude the preliminary enquiry in such cases within a short period of seven days".

The bench noted that in the instant case, the respondent-investigating agency had to procure the records from the CPWD and Central University, Kashmir, scan the said records and thereafter meticulously peruse the same before registering the FIR. In these circumstances, the time taken in concluding the preliminary enquiry does not appear to be unreasonably long and even otherwise, the petitioner has not been able to point out anything to show that the time taken in completion of the preliminary enquiry has caused any prejudice to him, the bench underscored.

"In my considered opinion, merely because preliminary enquiry has taken a long time to complete, it cannot vitiate the whole proceedings, particularly when no prejudice has been caused to the accused by such act of the enquiry officer", the court maintained.

Dealing with the other contention of the petitioner that he has been prosecuted for the offences under Section 4-H of the J&K PC Act besides other offences but there is no mention of said offence in the sanction order and hence the framing of charge against the petitioner was not sustainable in law as the sanction order itself is defective, the court observed,

"Mere omission to make mention of a particular offence, though allegations contained in the sanction order constitute such offence,would not make the order of sanction illegal".

In order to buttress the said position the bench found it worthwhile to record the following observations of the Supreme Court in Prakash Singh Badal vs. State of Punjab and others, (2007):

"The sanctioning authority is not required to separately specify each of the offence against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalized guidelines in that regard."

Accordingly, the bench found the petition devoid of any merit and dismissed the same.

Case Title : Ram Gopal Meena Vs CBI

Citation : 2022 LiveLaw (JKL) 232

Coram : Justice Sanjay Dhar

Counsel For Petitioner : Mr Nisar Ahmad Bhat

Counsel For Respondent : Mr Tahir Shamsi DSGI

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