Holding

The High Court was without jurisdiction to quash the prosecution after the FIR, sanction and charge‑sheet were filed; the appeal is allowed and the order quashing the proceedings is set aside.

Summary

The respondent, a senior police officer, was investigated under the Prevention of Corruption Act, 1947 for possessing assets disproportionate to his known income. After a FIR was lodged, the Maharashtra government granted sanction under Section 197 of the CrPC and a charge‑sheet was filed. The Bombay High Court, invoking Article 227 and Section 482 of the CrPC, quashed the prosecution on grounds of alleged denial of natural‑justice, lack of a detailed sanction order, non‑application of mind and alleged mala‑fide motives. The Supreme Court held that once an FIR, sanction and charge‑sheet are in place, the High Court has no jurisdiction to halt the trial and that the High Court erred in treating the sanction order as infirm or in requiring a pre‑trial hearing. It further ruled that allegations of mala‑fide or the need for a pre‑FIR hearing are irrelevant to the quashing power. Consequently, the appeal by the State was allowed and the High Court’s order set aside, permitting the criminal trial to proceed.

Issues considered

The propriety of exercising Article 227 and Section 482 of the CrPC to quash criminal proceedings after an FIR, sanction and charge‑sheet have been filed.
Whether the principles of natural justice require a pre‑FIR hearing for a public servant under Section 5(1)(e) of the Prevention of Corruption Act.
Whether the sanction order was invalid for lack of a detailed statement of disproportionate assets or for non‑application of mind.
Whether alleged mala‑fide motives of the investigating authorities can justify quashing of prosecution.

Legislation cited

Code of Criminal Procedure, 1973s. Section 197, s. Section 197(1)(b), s. Section 482
Constitution of Indias. Article 136, s. Article 227
Indian Evidence Act, 1872s. Section 114(e)
Prevention of Corruption Act, 1947s. Section 5(1)(e), s. Section 5(2), s. Section 6(1)(b)

Subjects

quashing of criminal proceedingsSection 482 CrPCnatural justiceprima facie casesanction under Section 197malafide allegationsPrevention of Corruption Acthigh court jurisdictionArticle 227

Judgment

A STATE OF MAHARASHTRA
v.
ISHWAR PIRAJI KALPATRI AND ORS.

NOVEMBER 30, 1995

B [M.K. MUKHERJEE AND B.N. KIRPAL, JJ.]

Constitution of India, Article 227 r/w C<:de of Criminal Procedure, 1973
S.482-High Court quashing criminal proceedings after lodging of F.I.R.,
granting of sanction and filing of charge sheet-Held, there was no justification
C for the High Cowt to have stopped nonnal procedure of trial.

Prevention of Conuption Act 1947-S.S(l)(e}-Fonnation of prima
f acie opinion of guilt leading to filing of FIR-Held, it is not obligatory to give
the person against whom report is to be lodged, an opportunity of being
heard-Natural justice.
D
Code of Criminal Procedure 197~S.482-Quashing of criminal
proceedings on ground of malafides-Held, malafides may be relevant while
examining evidence but would be no ground for quashing prosecution.

E Code of Criminal Procedure 197~S. 197 (l)(b) and Prevention of
Conuption Act 1947, s.6(1)(b)-Grant of sanction by State Government for
prosecution of public servant-High Court quashing sanction on ground of
non-application of mind by the authority-Held, order of sanction showed no .~
legal infinnity and that material on record was examined before according
sanction.
F
Constitution of India, Article 136-Respondent in the Supreme Court
seeking to withdraw original proceeding to avoid adverse decision-Held, no
justification for granting pennission; such practice strongly deprecated-Prac-
tice and Procedure.

G Consequent upon enquiries made against K, a Vigilance Officer in
the office of the Transport Commissioner, Bombay, a first information
r~port was recorded and a case registered under S.5(2) read ~th S.5(1)
(e) of the Prevention of Corruption Act, 1947 ('Act') . The government of
Maharashtra in its order according sanction to prosecute K stated that
H there was a prima facie case made out against him and that during the
812
STATEv. l.P. KALPATRI 813

course of his service he was found to be in possession of assets in his name A
and/or in the names of his family members disproportionate to his known
sources of income to the extent of over Rs. 5.66 lakhs. Soon thereafter, a
charge sheet was filed against K, his wife and certain relations.

The criminal writ petition filed by K for quashing the criminal
proceedings was allowed by a Single Judge of th~ Bombay High Court B
holding that K had been denied an opportunity of giving an explanation
prior to the registration of the offence; that the sanctioning officer did not
record in the order that K could not satisfactorily account for his dis-
proportionate assets; there was non-application of mind and that the
circumstances showed malafides of the authorities. C
Allowing the State's appeal, this Court

Held : 1. There was no justification for the High Court to have
exercised its jurisdiction under Article 227 of the Constitution and S.482
of the Cr. P.C. in quashing the prosecution. The first information report D
having been lodged, the Government of Maharashtra having accorded
sanction and thereafter, the charge having been filed, there was absolutely
no justification for the High Court to have stopped the normal procedure
of trial being allowed to continue. The truthfulness of the allegations and
the establishment of guilt can only take place when the trial proceeds
without any interruption. [826-F; D-E] E

Rupan Deol Bajaj v. Kanwar Pal Singh Gill, [1995) 6 SCC 194
Minakshi Bala v. Sudhir Kumar, [1994) 4 sec 142, referred to

2. For the formation of a prima facie opinion that an officer may be
guilty of criminal misconduct leading to the filing of the first information F
report, there is no provision in law or otherwise that makes it obligatory
of an opportunity of being heard to be given to a person against whom the
report is to be lodged. The opportunity which is to be afforded to the
delinquent officer under S.5(1)(e) of of the Act of satisfactorily explaining
about his assets and resources is before the Court when the trial com- G
mences and not an earlier stage. [821-B; G-H]

K Veeraswami v. Union of India, [1991) 3 sec 655 and State of Bihar
v. P.P. Shamia, [1992) Supp. 1 sec 222, relied on.

3. The State had not acted in a malafide manner and the observations H
814 SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A of the High Court in this regard were wholly unjustified. Allegations of
malafides may be relevant while judging the correctness of allegatior.s or
while examining the evidence. But the mere fact that the complainant is
guilty of malafides, would be no ground for quashing the prosecution. If
the complaint which is made is correct and an offence had been committed
B which will have no to be established in a Court of law, it is of no conse-
quence that the complainant was a person who was inimical or that he was
guilty of malafides. [825-B-E]

4. The order of sanction did not show any legal infirmity. It prima
f acie showed . that there had been an application of mind and that the
C material on record has been examined by the concerned officers before
according sanction. There was no warrant, in law, which .,required a state-
ment made while according sanction that the officer signing the order had
personally scrutinised the file and had arrived at the required satisfaction.
[820-A; 819-G; E]
D 5. There was no justification for permitting the respondent to
withdraw his writ petition. A party to the proceedings cannot be allowed
to take a chance and if he gets the impression that he will not succeed, to
seek permission to withdraw the original proceeding with a view to
reagitate the same contentions before the subordinate court through dif-
ferent proceedings. [818-G-H; 819-A]
E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
331 of 1993 Etc.

From the Judgment and Order dated 16.10.92 of the Bombay High
Court in Crl. W.P. No. 854 of 1991.
·"
F
S.K. Dholakia and D.M. Nargolkar for the Appellants.

G.L. Sanghi, Anip Sachthey, J.P. Pathak, M. Munshi, C.D. Singh,
A.C. Mahimkar and S.K. Suri for the Respondents.

G The Judgment of the Court was delivered by

KIRPAL, J. These are appeals by special leave granted against the
Judgment of a Single Judge of Bombay High Court in exercise of his
jurisdiction under Section 482 Criminal Procedure Code (hereinafter
referred to as the Cr. P.C.) and Article 227 of the "Constitution of India
H whereby the proceedings under the Prevention of Corruption Act, 1988
STATEv. LP. KALPATRI [KIRPAL,J.] 815

which were pending against the respondent herein before the Special Judge A
at Greater Bombay, were quashed.

The respondent had joined the police force as a P.S.I. Cadet on
1.6.1966 and after completion of his training, he was posted as police
Sub-Inspector in the Police force in 1968. He was promoted to the post of B
Police Sub-Inspector in September, 1974 and in August, 1981, he was
promoted to the post of Assistant Commissioner of Police. It was the case
of the respondent that he had held various important assignments and that
his record was unblemished.

It appears that one A.C.P. R.B. Kolekar of 'Anti-Corruption Bureau, C
Bombay on 1.1.1987 made enquiries with regard to the respondent who
was, at that time, holding the post of Vigilance Officer in the office of the
Transport Commissioner, Bombay. a first information report was recorded
... by ACP Kolekar on 16.2.1988 and the case was registered vide C.R. No.
4/88 under Section 5(2) read with Section 5(1) (e) of the Prevention of D
Corruption Act, 1947 (hereinafter referred to as the Act). Thereafter vide
a letter dated 8.6.1988, respondent was informed that the Bureau was
investigating an offence under Section 5(2) read with Section 5(1)(e) of the
Act and the case had been registered on 16.2.1988 for possession of assets
disproportionate to his known sources of income. As section 5(10) (e) of
the Act envisaged that the public servant should satisfactorily account for E
the pecuniary resources and property standing in his name or in the names
of others, the respondent was, by the said letter dated 8.6.1988, required
to attend the office of Anti Corruption Bureau on 20.6.1988 for the purpose
of giving a satisfactorily explanation in respect of properties valued at Rs.
15,00,764.06 which were found to be in his possession or in the names of F
others on his behalf. By his reply dated 20.6.1988, the respondent wrote
back saying that as the Anti Corruption Bureau had registered a complaint
against him, he was protected by Article 20(3) of the Constitution of India,
therefore, he could not be compelled to make statement which may
prejudice his case The respondent, accordingly, stated that he will not say
' J anything regarding the queries put to him. G

On 3.2.1990, the Government of Maharashtra accorded, in exercise
of its powers under Section 197 (l)(b) of the Cr. P.C. and clause (b) of
sub-section (1) of Section 6 of the Act, 1947 (equivalent to clause (b) of
sub-section (1) of Section 19 of the Act, 1988), sanction to the prosecution H
·"-
816 SUPREMECOURTREPORTS [1995] SUPP. 5 S.C.R.
0
"'
A of the respondent. In the recital of the said sanction order, it was stated
that the Government of Maharashtra had fully examined the material
before it and it had considered all the facts and circumstances discussed
therein and was satisfied that there was a prima f acie case made out against -~

the respondent and that it was necessary in the interest of justice that he
B would be prosecuted in the court of competent jurisdiction for the said
offence. In the schedule to the charge-sheet, the only person who was ~

accused was the respondent and the said schedule also contained the
allegations on the basis of which he was accused of having committed the
said criminal mis- conduct. It was, inter alia, stated that during the course
of his service between 1.1.1965 to 16.2.1988, he was found to be in posses-
c sion of pecuniary resources or property in his name and/or in the names
of the members of his family, clo~~ relations and associates which were
found to be disproportionate to his known sources of income to the extent
of 5,66,604.01. The annexures to the schedule indicated the details of
properties in his name and in the name of his family members and close •
D relations and associates as well as the total income derived by him and
members of 1lis family from their known sources, the total minimum
expenditure estimated to have been incurred by him and members of the
family as well as the savings which the resp.ondent may have had. It was
also stated therein that the respondent's. wife, his nephew, second brother-
in-law and two other associates had aided and abetted the respondent in
E
the commission of the aforesaid offence by holding the pecuniary resources
or properties in their names, for and on behalf of the accused persons as
particularised in one of the annexures to the said schedule attached to the ·'- -
sanctioned order. Soon after the sanction was received, charge-sheet was
filed on 8.2.1990 against the respondent, Tarulata Ishwar Kalpatri, his wife,
F Ramesh Darmaji Kalpatri, his nephew, Ravindra Nagendra Pakale
(brother-in-law) and Mukesh Bagwandas Goglani (a.friend).

The respondent then filed Criminal Writ Petition No. 854 of 1991
and the case was mentioned for admission before Mr. Justice M.F. Saldan-
G ha. After the rule was issued, an affidavit in reply was filed and by the ."-:
impugned judgment dated 16.10.1992, the proceedings, then pending
~·
before the Special Judge, Greater Bombay being Special Case No. 18/90
were quashed. Simultaneously, orders such as attachment etc. were also set ·
aside and the appellants were directed that whatever assets were seized or
H taken charge of, shall be restored forthwith.
STATE v. l.P. KALPA1RI [KIRPAL,J.] 817

The High Court allowed the said writ petition despite an objection A 1
having been taken on behalf of the appellant herein that the Court should
refrain from exercising its jurisdiction under Section 482 Cr. P.C. or under
Article 227 of the Constitution once the First information Report had been
lodged, government sanction received and charge-sheet filed. This conten-
tion was not accepted and the High Court quashed the criminal proceed- B
ings by, inter alia, holding that :

(a) Principles of natural justice had been denied and the provisions
of the Section 5 of the Act had not been been complied with
because the respondent should have been given an opportunity of
giving an explanation prior to the registration of the offence alleged C
against him and the failure to do so was fatal to the prosecution;

(b) That it was essential for the Sanctioning Officer to mention in
the body of the Sanction Order that the property was dispropor-
tionate to his known sources of income and that the public servant
could not satisfactorily account for the same and this statement D
had not been recorded in the said order;

(c) While granting the sanction, there had been a non- application
of mind on the part of the sanctioning authority;

... (d) The manner in which the respondent had been suspended and
the suspension order served on him at the time when his juniors
were ordered to be promoted and other circumstances showed the
malafides of the authorities and on this ground alone, the proceed-
ings was liable to be quashed.
E

F
Impugning the judgment of the aforesaid Single Judge of the Bombay
High Court, it had been contended by Mr. S.K. Dholakia, learned Sr.
Counsel for the appellant, that the learned Single Judge ought not to have
interfered with the prosecution, once it had been launched and it would
have been open to the respondent herein to raise any contention which he
wanted before the Special Judge. It was also open to the respondent, it was G
submitted, to apply to the Special Judge and make a case for his discharge.
In support of his contention, learned counsel has relied on the following
decisions, namely; K Veeraswami v. Union of India and Others, [1991) 3
SCC 655, State of Bihar and Other v. P.P. Shanna, IAS and Another, [1992]
Supp. 1 SCC 222, Minakshi Bala v. Sudhir Kumar and others, [1994] 4 SCC H
818 SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A 142 and Mrs. Rupan Deal Bajaj & Anr. v. Kanwar Pal Singh Gill and
another, JT (1995) 7 SC 299. It was also contended that the learned Single
Judge had not only erred in law in quashing the prosecution but had also
not appreciated the facts, on record, correctly.

On behalf of the respondent, Mr. G.L. Sanghi, Sr. Counsel reiterated
B the contentions which had found favour with the learned Single Judge and
it was submitted that the respondent would be unduly and unnecessarily
harassed if he was required to take part in a protracted trial. It was
submitted that there were serious allegations of mala fides against the
authorities and principles of natural justice were violated because no
C opportunity was granted to the respondent before the First Information
Report was filed. Faced with some difficulty, Mr. Sanghi submitted during
the course of his argument, that the respondent should be allowed to
withdraw the original writ petition and he should be permitted to agitate
all the contentions which he had raised before the Special Judge. Accord-
D ing to the learned counsel, the effect of allowing the withdrawal of the writ
petition, at this stage, would be that the judgment of the Single Judge of
the Bombay High Court would become non est and no prejudice would be
caused to any party.

Taking the last submission first, it appears strange that when a
E petition had been filed in the High Court, judgment obtained and the losing
party comes to the Superior Court, then in order to avoid an unfavourable
order, a request should be made for the withdrawal of the original proceed-
ing in an effort to avoid an adverse decision from the Superior Court with
a view to re- agitate the same contentions once again before the subor-
...
j

F dinate court. The High Court had exercised its jurisdiction by observing
that there was no proper sanction accorded by the Government, principles
of natural justice had been violated and conduct of the appellant showed
the mala fides. In our opinion there was no warrant for the High Court
coming to the said conclusion and the judgment has to be set-aside. A party
to the proceedings cannot be allowed, at this stage at least to take a chance
G and if he gets the impression that he will not succeed to seek permission
to withdraw the original proceeding obviously with a view to reagitate the
same contentions, which have been or may be, adjudicated upon, by a
higher court before the subordinate court though in different proceedings.
We strongly deprecate a practice like this, if it exists. This Will be opposed
H to judicial descipline and may lead to unhealthy practices which will not
STATEv,LP,KALPATRl[KIRPAL,J,] . 819

be conducive, On the facts of this case, we see no justification for permit- A
ting the respondent to withdraw his writ petition,

In coming to the conclusion that the order of the sanction was not
valid, the High Court first held that "in the absence of sanctioning authority
recording and holding that the accused could not satisfactorily account for
disproportionate assets, no sanction could ever have been granted",
B
Without going into the question as to whether in the order according
sanction it is necessary for such an averment being made, the record clearly
discloses that in the schedule annexed to the sanction dated 32,1990, such
a statement was made, After stating that the respondent and his family
and/or associates were found to be in possession of pecuniary resources or c
properties disproportionate to the extent of Rs, 5,66,604,01, it was specifi-
cally stated that with regard to this "the accused person failed to satisfac-
torily account for", It is clear that the learned Judge had wrongly observed
that such a statement was absent,
D
Another reason as given by the High Court for quashing the sanction
was that the order of sanction was signed by the Additional Chief Secretary
to the Government of Maharashtra but "there is nothing in this order to
indicate as to whether the signatory or any other officer on his part was
the one who had personally scrutinised the file and arrived at a subjective
satisfaction that is a legal pre-requisite", We do not find any warrant, in E
law, which requires a statement being made, while according sanction, that
the officer signing the order had personally scrutinised the file and had
arrived at the required satisfaction, In the preamble of the said order, it is
categorically stated "and whereas the Govemment of Maharashtra having
fully examined the material before it and considering all the facts and F
circumstances disclosed herein, is satisfied that there is a prim a f acie case
made out against the accused person and that it is necessary in the interest
of justice that the accused person should be prosecuted in the court of
competent jurisdiction for the said offence,.,.,.," ·

This pTima f acie shows that there has been an application of mind G
and that the material on record has been examined by the concerned
officers before according sanction, In view of the aforesaid, there was
absolutely no justification for the learned Judge to observe that any such
statement, as indicated by him, was required to be made in the order, The
learned Single Judge made observations to the effect that the manner in H
820 SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.
. "'
A which the sanction order had been passed would show that a 'rather
cavaliar treatment has been meted out in the present case. We do not see
any justification for the court making such observations in the present case
because the perusal of the order of sanction does not show any legal
infirmity and such remarks by the Judge were clearly uncalled for.
B The main thread which runs throughout the judgment is the alleged
non-compliance with the principles of natural justice insofar as ap-
plicability of Section 5(1)(e) of the Act is concerned, which Section reads
as follows:

"5(1)(e) if he or any person on his behalf is in possession or
c has, at. any time during the period of his office, been in possession,
for which the public servant cannot satisfactorily account, of
pecuniary resources or property disproportionate to his known
sources of income."

D Interpreting this provision, the learned Judge had come to the con-
clusion that opportunity to satisfactorily account for must be afforded
before an offence is registered. In this connection, it was observed as
follows:

·"Having regard to the procedure followed in relation to the
E investigation of corruption charges under Section 5(1)(e) of the
Prevention of Corruption Act, one needs to bear in mind that
unlike in the case of offences under the I.P.C., substantial in-
quiries/investigations are carried out and completed prior to arriv-
ing at a conclusion as to whether or not, there is ground to hold
F that· an offence has been completed. The procedure cannot be
one-sided iii. the face of the statutory requirement which prescribes
that the accused must be afforded an opportunity of being heard.
Undisputedly, therefore, that opportunity has to come prior to the
stage when conclusions are reached if at all it is to be meaningful."
G In our opinion, there is a complete mis-reading of the aforesaid
provision by the High Court. It is, no doubt true that a satisfactory
explanation was required to be given by the Delinquent Officer. But this
opportunity is only to be given during the course of the trial. It is no doubt
true. that evidence had to be gathered and a p1ima facie opinion found that
H the provisions of Section 5(1)(e) of the Act are attracted before a first
).
- STATE v. LP. KALPATRI [KIRPAL, J.]

information report was lodged. During the course of gathering of the A
821

material, it does happen that the officer concerned or other person may
be questioned or other querries made. For the formation of a prima f acie
opinion that an officer may be guilty of criminal mis-conduct leading to the
filing of the First Information Report, there is no provision in law or
·"" otherwise which makes it obligatory of an opportunity of being heard to be
./ B
given to a person against whom the report is to be lodged. That such
satisfactory account had to be rendered before a court is also borne out
from the judgment of this Court in Veeraswami's case (supra) where
referring to Section 5(1)(e) of the Act at page 713 of the said Judgment,
it was observed as follows :
c

'•
"Clause (e) creates a statutory offence which must be proved
by the prosecution. It is for the prosecution to prove that the
accused or any person on his behalf, has been in possession of
pecuniary resources or property disproportionate to his known
sources of income. When that onus is discharged by the prosecu-
D
tion, it is for the accused to account satisfactorily for the dispropor-
tionality of the properties possessed by him. The Section makes
available statutory defence which must be proved by the accused.
It is a restricted defence that is accorded to the accused to account
for the disproportionality of the assets over the income. But the
legal burden of proof placed on the accused is not so onerous as E
that of the prosecution. However, it is just not throwing some doubt
on the prosecution version. The legislature has advisedly used the
expression "satisfactorily account". The emphasis must be on the
word "satisfactorily". That means the accused has to satisfy the court
that his explanation is w01thy of acceptance. The burden of proof F
placed on the accused is an evidential burden though not a per-
suasive burden. The accused, however, could discharge that bur-
den of proof "on the balance of probabilities" either from the
evidence of the prosecution and/or evidence from ~he defence."
(emphasis added)
~ G
I The aforesaid passage leaves no manner of doubt that the oppor-
tunity which is to be afforded to the delinquent officer under Section
\ 5(1)( e) of the Act of satisfactorily explaning about his assets and resources
is before the Court when the trial Commences and not at an earlier stage.
The conclusion arrived at by the learned Single Judge that principles of H
822 SUPREME COURT REPORTS (1995] SUPP. 5 S.C.R.

A natural justice had been violated, as no opportunity was given before the
registration of the case, is clearly unwarranted and contrary to the
aforesaid observations of this Court in K Veeraswami's case (supra).

Further the conclusion of the learned Judge that the opportunity of
hearing must be granted and the non-grant of the same would vitiate the
B order of sanction is clearly contrary to the following observations of this
Court in PA. Shanna's case (supra) which reads as under :

"It is equally well settled that before granting sanction the
authority or the appropriate Government must have before it the
c necessary report and the material facts which prima facie establish
the Commission of offence charged for and the appropriate
Government would apply their mind to those facts. The order of
sanction is only an administrative act and not a quasi- judicial one
nor is a lis involved. Therefore, the order of sanction need not
D contain detailed reasons in support thereof as was contended by
Sri Jain. But the basic facts that constitute the offence must be
apparent on the impugned order and the record must bear out the
reasons in that regard. 17ie question of gi,ven an opportunity to the
public se1vant at that stage as was contended for the respondents
does not arise. Proper application of mind to the existence of prima
E facie evidence of the commission of the offence is only a precon-
dition to grant or refuse to grant sanction. When the Government
accorded sanction, Section 114(e) of the Evidence Act raises
presumption that the official acts have_ been regularly performed.
The burden is heavier on the accused to establish the contra to
F rebut that statutory presumption. Once that is done then it is the
duty of the prosecution to produce necessary record to establish
that after application of mind and consideration thereof to the
subject the grant or refusal to grant sanction was made by the
appropriate authority. At any time before the court takes cog-
nizance of the offence the order of sanction could be made. It is
G settled law that issuance of the process to the accused to appear
before the court is sine qua non of taking cognizance of the offence.
The emphasis of Section 197(1) of other similar provisions that "no
court shall take cognizance of such offence except with the pre-
vious sanction" posits that before the taking cognizance of the
H offence alleged, there must be before the court the prior sanction
STATEv. I.P.KALPATRI[KIRPAL,J.] 823

given by the competent authority. Therefore, at any time before A

' t~g cognizance of the offence it is open to the competent
authority to grant sanction and the prosecution is entitled to
produce the order of sanction. Filing of charge-sheet before the
court without sanction per se is not illegal, nor a condition prece-
dent. A perusal of the sanction order clearly indicates that the
B
Government appears to have applied its mind to the facts placed
before it and considered them and then granted sanction. No
evidence has been placed before us to come to a different con-
clusion. Accordingly we hold that the High Court committed
manifest error of law to quash the charge-sheets on those grounds."
(emphasis added) c
The last ground which had been given by the learned judge for
quashing the prosecution is that the appellants are guilty of mala fides.
What is the ingredient of showing mala fide, according to the learned
Judge, was that the rules of natural Justice had not been followed prior to
D
the loading of the First Information Report. This ground, for the reasons
stated hereinabove, is clearly untenable. Reference has also been made by
the learned Judge to the service of the suspension order by affixation at
the respondent's residence. It is to be noted that the suspension order was
passed on 17.10.1988 and it was served by affixation on 19.1.1989. The
comment which has been made by the learned Judge was that the respon- E
dents were unable to give any respectable or plausible explanation for not
having served the suspension order on the petitioner for over three months.
In this connection and as a circumstance showing mala fides, the learned
Judge has also observed as under :
F
"The petitioner has pointed out a list of officers against whom
corruption charges were under investigation or were pending and
who have not been suspended and the irresistible suspension itself
4
which has it roots in the present corruption charges was being used
as a handle to cover up for the supersession."
G
The order of suspension was passed on 17.10.1988. It is not necessary
,> to do into the question as to why the suspension order was not served for
three months, but that mala fide should be inferred by reason of the fact
that order of suspension was passed and that, in collateral proceedings, the
said suspension order had been .set-aside or revoked, is wholly irrelevant. H
824 SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A Full facts are not available on the record of this case regarding the other
proceedings which had taken place with regard to the passing of the
suspension order, the same being set-aside or with regard to the order of
transfer which was passed. What is, however, important, is that the order
of suspension was passed against the respondent, who was a police officer,
after the filing of the First Information Report in the present case. A prima
B facie opinion had been formed that the provisions of Section 5(1)(e) of the
Act were attracted and a notice dated 8.6.1988 had been sent to the
respondent asking for his explanation. It is wrong to infer mala fides "' '
because of the passing of an order of suspension. While the Single Judge
had mentioned about the order of suspension being passed and set- aside,
C the appellants, in this appeal, have placed on record an order dated
14.1.1991 passed by this Court in Special Leave Petition (C) No. 14487 of
1990 filed against the order dated 10.10.1990 of the Bombay High Court in
favour of the respondent herein. This order reads as follows :

"Heard counsel for the parties.
D
We. find that the respondent is now facing a trial in respect of
charges under Section 5(2) read with 5(1)(a) of the Act II of 1947
and the charge sheet was submitted on 8.2.1990. He had earlier
been suspended and the suspension came to terminate with lapse
E of time. The present suspension has been vacated by the High
Court with a direction that the respondent should be given a
posting.

We are of the view that taking into account the fact that the
respondent is already subjected to a criminal charge, the suspen-
F sion was not unjustified and the High Court should, in normal
course, not have interfered. We accordingly, reverse the order of
the High Court and hold that the suspension would revive.

We would, however, make it clear that in case the State of
Maharashtra is in a position to give a posting to the respondent,
G
not connected with normal police work and away from the place
where the trial takes place, the same may be explored.

The Special Leave Petition is accordingly, disposed of."

H Therefore, the aforesaid order seems to suggest that the first suspen-
STATE v. LP. KALP ATRI [KIRPAL, J.] 825

sion order had lapsed and with regard to the second suspension order, this A
Court observed that the same should not have been interfered by the High
Court and it was by order of this Court that the suspension of the respon-
dent was revived.

On the facts of this case, we are not satisfied that the appellant had
acted in the mala fide manner and we are constrained to observe that the
B
observations made by the High Court with regard to the mala fides were
wholly unjustifie<;i and without any basis.

In fact, the question of mala fides in a case like the present is not
at all relevant. If the complaint which is made is correct and an offence C
had been committed which will have to be established in a court of law, it
is of no consequence that the complainant was a person who was enimical
or that he was guilty of ma/a fides. If the ingredients which establish the
commission of the offence or mis-conduct exist then, the prosecution
cannot fail merely because there was an animus of the complainant or the D
,. prosecution against the accused. Allegations of ma/a fides may be relevant
while judging the correctness of the allegations or while examining the
evidence. But the mere fact that the complainant is guilty of mala fides,
would be no ground for quashing the prosecution. In the instant case,
specific averments of facts have been made whereby it was alleged that the
respondent had disproportionately large assets. Mala fide intention of the E
appellant in launching prosecution against the respondent with a view to
punish him cannot be a reason for preventing the court of competent
jurisdiction from examining the evidence which may be led before it, for
coming to the conclusion whether an offence had been committed or not.
Allegations of mala fides were also made in P.P. Shanna's case (supra) p
against the informer. It was held by this Court that when an information is
lodged at the police station and an offence is registered, then the mala fides
of the informant would be of secondary importance. It is the material
collected during the investigation and evidence led in court which decides

- the fate of the accused person. The allegations of mala fides against the
informant are of no consequence and cannot by itself be the basis for G
quashing the proceedings.

This Court has consistently taken the view that the Court should not,
except in extra-ordinary circumstances, exercise its jurisdiction under Sec-
tion 482 Cr. P.C. so as to quash the prosecution proceedings after they H
826 SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A have been launched. In KP.S. Gill's case (supra), it was, inter alia, ob-
served, that "we also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases; that the Court will
not be justified in embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the First Information
B Report or the complaint and that the extra-ordinary or inherent power do
not confer an arbitrary jurisdiction on the Court to act according to its
whim or caprice".

The position of law, in this regard, has been very succinitly stated in
c the abovesaid case that at the stage of quashing an First Information
Report or complaint, the High Court is not justified in embarking upon an
enquiry as to the probability, reliability or genuineness of the allegations
made therein. This is precisely what has been done by the learned Judge
in the present case. The First Information Report having been lodged, the
Government of Maharashtra having accorded sanction and thereafter, the
D charge having been filed, there was absolutely no justification for the High
Court to have stopped the normal procedure of the trial being allowed to
continue. It cannot be presumed that there was no application 'of mind
when the First Information Report was prepared and the sanction of the
Government obtained. The allegations as made in the First Information
E Report and the order granting sanction, if true, would clearly establish that
the respondent was rightly prosecuted and was guilty of criminal mis-con-
duct. The truthfulness of the allegations and the establishment of the guilt
can only take plact!! when the trial proceeds without any interruption. There
was no justification for the High Court to have exercised its jurisdiction
under Article 227 of the Constitution and Section 482 of the ·er. P.C. in
F quashing the prosecution. For the abovesaid reasons, the appeals are
allowed and the judgment of the High Court is set-aside.

S.M. Appeal allowed.

~.