Statement Made During Enquiry At Pre FIR Stage Neither A Confession Nor A Statement U/s 160 CrPC: Supreme Court

The Supreme Court observed that the statements made during the discreet/open enquiry at Pre-FIR stage cannot be said to be a statement under Section 160 CrPC and/or the statement to be recorded during the course of investigation as per the Code of Criminal Procedure and therefore cannot be used against the accused during the course of trial.

Such a statement cannot be said to be confessional in character, and as and when and/or if such a statement is considered to be confessional, in that case only, it can be said to be a statement which is self-incriminatory, which can be said to be impermissible in law, the bench comprising Justices DY Chandrachud and MR Shah observed. The bench added that Statement and the information so received during the course of discrete enquiry shall be only for the purpose to satisfy and find out whether an offence is disclosed.

In this case, the High Court dismissed the challenge against a notice issued to the appellant by the Police Inspector, Anti Corruption Bureau, Nagpur, by which the appellant was called upon to give his statement in respect of the properties owned by him, for the purpose of enquiring the complaint against him, alleging accumulating the assets disproportionate to his known sources of income.

The contention raised in appeal was that the notice has been issued in purported exercise of power under Section 160 Cr.P.C., but since the appellant cannot be said to be a witness in the case, Section 160 Cr.P.C. shall not be applicable at all. On the other hand, the state contended that the notice was issued to clarify regarding his assets and known sources of income, which would enable the investigating officer to ascertain whether cognizable offence is disclosed or not. It was submitted that Section 160 Cr.P.C. has been inadvertently mentioned in the said notice. 

In appeal, the bench considered the question whether such an enquiry at pre-FIR stage would be legal and to what extent such an enquiry is permissible? Referring to Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1., the bench observed that  an enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income.

"After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged. However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made.", the court said.

Referring to the impugned notice, the bench observed that the information sought therein has a direct connection with the allegations made i.e. accumulating assets disproportionate to his known sources of income. It said:

The same cannot be said to be a fishing or roving enquiry. Such a statement cannot be said to be a statement under Section 160 and/or the statement to be recorded during the course of investigation as per the Code of Criminal Procedure. Such a statement even cannot be used against the appellant during the course of trial. Statement of the appellant and the information so received during the course of discrete enquiry shall be only for the purpose to satisfy and find out whether an offence under Section 13(1)(e) of the PC Act, 1988 is disclosed. Such a statement cannot be said to be confessional in character, and as and when and/or if such a statement is considered to be confessional, in that case only, it can be said to be a statement which is self-incriminatory, which can be said to be impermissible in law.

While dismissing the appeal, the bench clarified that statements made by the appellant during open enquiry shall not be treated as a confessional statement.

 Case: Charansingh Vs. State of Maharashtra [CrA 363 OF 2021]

Coram: Justices Justices DY Chandrachud and MR Shah

Counsel: Sr. Adv Subodh Dharmadhikari, Sr. Adv Raja Thakare

Citation: LL 2021 SC 179

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