(Prayer: Criminal Original Petition is filed under Section 482 of Cr.P.C.528 Of Bharatiya Nagarik Suraksha Sanhita, 2023, to call for the records pertaining to the FIR in Crime No.5 of 2023 on the file of the Inspector of Police, CC-IV Unit, Vigilance and Anti-Corruption, Chennai-16 and quash the same as illegal, arbitrary and without jurisdiction.)

1. The petitioners/accused in Crime No.5 of 2023 for the offence under Section 13(2) r/w. 13(1)(e) of Prevention of Corruption Act, 1988 (PC Act) r/w. Section 109 IPC filed this quash petition.

2. The complaint against the petitioner is that the first petitioner/A1, worked as Joint Director (Secondary) School Education from 01.04.2012 to 10.05.2012, Director of Elementary Education from 11.05.2012 to 31.07.2013, Director of School Education from 31.07.2013 to 10.12.2014 and Director of State Council of Educational Research and Training from 10.12.2014 to 25304.2017 and is a public servant. The second petitioner, wife of A1, is a housewife having no independent source of income except some rental income. The third petitioner, father of first petitioner, is a farmer having no independent source of income except some agricultural income. The fourth petitioner, mother of first petitioner, is a housewife with no independent source of income except some agricultural income. The fifth and sixth petitioners are father-in-law and mother-in-law of first petitioner, having no independent source of income except some rental income. The marriage between the first and second petitioners took place on 24.10.1996, they have two daughters and one son. It was found that the first petitioner/A1, a public servant, acquired and holding properties in the name of his family members, for which, he could not properly account for the check period from 01.04.2012 to 31.03.2016 and the disproportionate asset acquired was to the tune of Rs.3,89,21,626/-, which is around 354.66%. After preliminary enquiry, collecting documents and seeking explanations from the petitioners, FIR registered on 11.10.2023 and now investigation is in progress.

3. The learned senior counsel appearing for the petitioners submitted that the prosecution calculated the probable income derived by the accused and his family members through known sources of income during the check period including salary, interest from banks, rental income and agriculture income and given a credit of Rs.1,09,74,463/- not stand to reason and how such calculation was made, no details given. Further, FIR itself is vague and recorded as though the first petitioner purchased vacant sites/plots at Somangalam Village, Erode, Thiruthangal Village, Madhavaram Town, Punja lands at Nattarmangalam Village, KeelaThiruthangal Village, PazhayaSeavaram, Nathanallur Village, Ayansalvarpatti and house buildings at Thiruthangal, Madhavaram, Jawahar Nagar and Kollampalayam. The properties were valued to the tune of Rs.6,52,52,059/-. In the FIR, it is recorded that there is a suspicion of commission of cognizable offence by the petitioners 2 to 6 in abetting the first petitioner. This suspicion should be based on credible information, but in the FIR, there is no reference to any information. On a demurrer, he submitted that if A2 to A6 were found to be holding properties disproportionate to their assets but that alone would not be sufficient to proceed against them unless and until it is proved that there was some flow of money and a connection between the first petitioner with the other petitioners. There is no reference in the FIR or any scrap of paper produced by the respondent to show that the transactions of petitioners 2 to 6 had any connection with the first petitioner and it is a benami transaction. The respondent had been doing fishing preliminary enquiry in PE.92/2021/EDN/HW dated 06.10.2021 in a perfunctory manner. No previous approval of the competent authority under Section 17A of PC Act obtained. Hence, the FIR to be quashed following the dictum laid down in Yashwant Sinha's case. He further submitted that the Apex Court in the case of Lalitha Kumari held that preliminary verification cannot be used to verify the veracity of the complaint and that preliminary verification cannot exceed more than seven days. The preliminary enquiry is to the limited purpose to see that whether cognizable offence is made out or and in this case, the respondent carried out in-depth investigation in the pretext of conducting preliminary enquiry. A final opportunity notice dated 02.05.2023 along with basic statements were served to the petitioners even prior to the registration of the FIR, which would show that the respondent verified the veracity of the complaint for more than two years. In Paragraph 27 of the Manual of Directorate of Vigilance and Anti-corruption, time given is two months. The preliminary enquiry was farcical and it was concluded in a hurried manner before the petitioners could produce any documentary evidence sought for by the respondent. The investigation in this case is based on conjectures which is used as a tool of witch-hunting and harassment. Further, as per Section 17(b) of PC Act, only an Assistant Commissioner of Police in the City and Deputy Superintendent of Police in the rural areas are empowered to conduct investigation and not below that rank. In this case, FIR is registered by the Inspector of Police, in which, it is recorded that the Investigating Officer took up the investigation as per the orders of the Directorate of Vigilance and Anti Corruption. It is further recorded that permission is accorded by the Director of DVAC through letter No.PE 92/2021/EDN/HQ dated 11.10.2023. There is nothing to show that the present Investigating Officer was authorized to investigate. Further, prior permission of the Vigilance Commissioner obtained before registering FIR as per Paragraph 55 of Manual of Directorate of Vigilance and Anti-Corruption. FIR in the instant case shows that it was registered with the permission of the Director dated 11.10.2023. A regular case can be registered only with the prior permission of the Vigilance Commissioner. No such permission obtained before registering a regular case. The basic statement in the preliminary enquiry worked out by the respondent on the basis of the statements allegedly given by the petitioners as evidenced in the final opportunity notice dated 02.05.2023. During the preliminary enquiry, the petitioners were compelled to give incriminating statements orally. Though the petitioners refused to self-incriminate themselves, the respondents prepared statements as per their wish. The preliminary enquiry is premised on the alleged statement given by the petitioners and hence the preliminary enquiry is hit by Sections 25 and 26 of Indian Evidence Act and Sections 161 to 163 of Cr.P.C. and above all, Article 20(3) of the Constitution of India.

4. The learned senior counsel further submitted that the petitioners furnished a reply dated 14.06.2023 to the final opportunity notice dated 02.05.2023 but the same not considered despite the petitioners informing that the details called for is for more than ten years and the details have to be collected from the Bank and other authorities, hence sought for extension of time through letters dated 23.06.2023, 29.07.2023 and 13.09.2023. Further during that time the wedding of petitioners 1 and 2 daughter was shortly to be held, third petitioner is aged about 90 years, fourth petitioner is aged about 84 years, fifth petitioner is aged about 68 years and the sixth petitioner is aged about 62 years, all senior citizens with aged related health ailments. The respondent for obvious reasons failed to consider the sufficient cause shown by the petitioners in not submitting the documentary evidence immediately and had brushed aise the reasons given and registered the FIR on 11.10.2023. He further submitted that the Hon'ble Apex Court in the case of Chattisgarh and another vs. Aman Kumar Singh and others held that the First Information Report in the disproportionate asset case must, as of necessity, prima facie, contain ingredients for perception that there is enough reason to suspect commission of a cognizable offence relating to criminal misconduct and thereafter to embark upon an investigation. In this case FIR reads as though the petitioners 2 to 6 have no independent source of income other than rental and agricultural income and further projects as though the assets acquired by the petitioners 2 to 6 during the check period are said to be the assets of the first petitioners. Though agricultural income and rental income are recorded, the accrued income of petitioners 2 to 6 has not been taken as income. The Search Jabitha would confirm that hundreds of grams of gold ornaments were pledged with third petitioner, who is also a Pawneor and having Pawn broker license from the year 1968. In fact the first petitioner, a public servant was not even born at that time. The Apex Court in the cases of P.Nallammal vs. State rep. by Inspector of Police reported in (1999) 6 SCC 559 and Deputy Superintendent of Police, Chennai vs. K.Inbasagaran reported in 2006 (1) SCC 420, held that it is imperative and incumbent on the respondent to consider the petitioners 2 to 6 as separate entities and not to be clubbed with the income of the public servant when their income is an independent income. The first petitioner not declared his parents and his in-laws as dependent or wholly dependent. In the final opportunity notice, the income tax returns of the petitioners for the assessment years 2013-2014, 2014-2015, 2015-2016 and 2016-2017 corresponding tot he check period have been collected but not considered. The petitioners 2 to 6 had regular agricultural land leas, rental, pawn broking business, sum from LIC policy maturity, amount earned from maturity of fixed deposits, amount from selling of shares, salary from private employment, remuneration on completion of projects, sale of rice, sale of gold and other trading activities. These incomes had not been considered. The immovable assets like fertile agriculture lands, house and commercial buildings came in separate possession of the petitioners in the year 1985 and 1990 long before the first petitioner joined the Government service. The petitioners had also given a tabulation giving explanation that the properties owned by them as their independent properties and they had not abetted the public servant in any manner.

5. The learned senior counsel further submitted that the first petitioner in this case submitted his asset and liability returns to the School Education Department on 25.04.2012 in Forms I to V in Schedule I as per Rule 7(3) of the Tamil Nadu Government Servants' Conduct Rules, 1973. He also declared the income generated from HUF property through agricultural and rental income. The Apex Court in the case of KedariLal vs. State of Madhya Pradesh reported in (2015) 14 SCC 505 held that receipt by way of share in the partition of ancestral property or bequest under a will or advances from close relations would come within the expression “known source of income”. The income generated from collection of parking charges to the tune of Rs.2,86,650/- was pooled as gift to the HUF funds. The first petitioner declared an amount of Rs.22,52,705/- as income from HUF properties, totalling Rs.25,39,355/- in the Assets and Liabilities statement submitted to his Department. As regards the other petitioners, the third petitioners was a licensed pawn broker and he was also doing money lending business. All the petitioners were actively doing agriculture having income from agriculture, rental income and further investments. All these details have been submitted, but not considered. On the other hand, preliminary inquiry conducted by Vigilance and Anti-Corruption, Sivagangai and after collecting the details, the same has been transferred and now the case has been registered by Viglance and Anti-Corruption, Chennai, how the case transferred and what on what authority, there is no reference. In this case, the mandatory requirement not been followed. The allegation in the FIR taken at face value accepted in their entirety, does not prima facie constitute any offence under Section 13(1)(e) of PC Act. There is no averment in the FIR narrating any opportunity given to the petitioners to satisfactorily account for their unknown source of income. The investigation conducted by the prosecution is illegal without valid order under Section 17 of PC Act. No preliminary inquiry done as per the guidelines of the Apex Court. The investigation is manifested with malicious intent and instituted with an ulterior motive. The investigation continued by the respondent is against the dictum of the Apex Court and this Court.

6. In support of his contentions, the learned senior counsel relied upon the following decisions:

                  (1)State of Haryana vs. BhajanLal reported in CDJ 1990 SC 684

                  (2)Noor Aga vs. State of Punjab and another reported in 2008 (56) BLJR 2254

                  (3)LalitaKumari vs. Government of U.P. And others reporte din CDJ 2013 SC 992

                  (4)Charansingh vs. State of Maharashtra reporte din CDJ 2021 SC 232

                  (5)Yashwant Sinha and others vs. Central Bureau of Investigation  through its Director and another (Review Petition(Crl.) No.46 of 2019 in W.P. (CRl.).No.298 of 2018

                  (6)Nara Chandrababu Naidu vs. State of Andhra Pradesh and another reported in 2024 Livelaw (SC) 41

                  (7) State of Chattisgarh and another vs. Aman Kumar Singh and others reported in 2023 SCC Online SC 198

                  (8)P.Nallammal vs. State rep. by Inspector of Police reported in (1999) 6 SCC 559

                  (9)Deputy Superintendent of Police, Chennai vs. K.Inbasagaranreproted in 2006 (1) SCC 420

                  (10)KedaiLal vs. State of Madhya Pradesh reported in (2015) 14 SCC 505

                  (11)N.Ramakrishnaiah (D) Through LR's vs. State of Andhra Pradesh reported in 2008 (17) SCC 83

                  (12)State vs. Soundirarasu reported in 2022 Livelaw (SC) 741

                  (13)M/s.Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others (Crl.A.No.330 of 2021) Crl.O.P.No.10850 of 2024

7. The learned Additional Advocate General filed counter and submitted that based on the complaint given by one Abdul Malik of Sivagangai District, the Director of DVAC ordered to register and conduct preliminary enquiry in PE 92/2021/EDN/HQ dated 06.10.2021. The preliminary enquiry was conducted by the Inspector, V&AC, Sivagangai Detachment. After completion of enquiry, the Enquiry Officer issued final opportunity notice to the petitioners on 02.05.2023 to give reply within 15 days. The petitioners failed to give any supporting documentary proof for their claim for more than five months. Hence with the available record and information, the Enquiry Officer completed the enquiry and submitted his report to the Headquarters. Based on this enquiry, a case in Crime No.5 of 2023 for the offence under Section 13(2) r/w. 13(1)(e) of PC Act and Section 109 IPC registered against the petitioners. The check period has been taken from 01.04.2012 to 31.03.2016. A house search was conducted on 12.10.2023 at the residence of the petitioners 1 and 2 at Tower Block, Taylors Road, Kilpauk, Chennai and no incriminating documents seized. The house search was conducted in the residence of petitioners 3 and 4 at Vellankovil, GopichettipalayamTaluk, Erode District and seized the locker keys bearing Nos.1331 and 1290. House search at the residence of petitioners 5 an 6 was conducted at Agraharam Street, Erode District on 12.10.2023 and no incriminating documents seized. The respondentfarily admitted that there is no asset purchased by the first petitioner in his name during the check period, all the assets were purchased and held in the name of petitioners 2 to 6. In the FIR there is a typographical error that A1 purchased vacant sites and plots in various places in his name. At the beginning of the check period i.e., 01.04.2012, the properties that stood in the name of second petitioner is a house building measuring totally 3420 square feet in Firap Road valued around Rs.20,74,650 and a land measuring an extent of 9.78 cents at Thaiyur Village valued around Rs.7,44,482/-, another vacant land of 5.67 cents in Thaiyur village valued around Rs.8,00,000/-, but at the end of the check period on 31.03.2016, four properties were found added i.e. vacant site measuring 1800 square feet at Somangalam village valued around Rs.3,75,540/-, house building measuring 22 square meter in Thiruthangal Town to the tune of Rs.2,91,850/-, Punja land measuring 2 acre 25 cents in Nattarmangalam Village, Virudhunagar District valued around Rs.1,69,775/- and Punja land measuring 26 cents in KeelaThiruthangal Village valued around Rs.10,81,870/-. Besides the above properties, A2 had projected that she as an employee in a firm and from her business income she was doing from 2010, she had generated income and purchased the property. The income tax assessment declaration by the second petitioner to the tune of Rs.6,50,000/- for the period 2016-2017 was taken into account. Since the second petitioner failed to produce any other document, the other explanation was not considered. As regards the third petitioner, father of the first petitioner, there were eight properties at the beginning of the check period, six more properties added at the end of the check period. Likewise, the fourth petitioner who is the mother of the first petitioner, at the beginning of the check period there were six properties and at the end of the check period, six more properties added. The fifth petitioner who is the father-in-law of the first petitioner, had three properties at the beginning of the check period and at the end of the check period, he was holding twelve properties. The sixth petitioner/mother in-law of the first petitioner had one property at the beginning of the check period and twelve properties added at the end of the check period.

8. It is further submitted that final opportunity notice was given to them but they have not furnished any acceptable reply with supporting documents. The probable income of the petitioners have been worked out and after deducting the expenditure, the disproportionate asset had been calculated. Following the circular, rules and guidelines, case has been registered and now investigation is in progress. The respondent registered the FIR against the petitioners only after conducting preliminary enquiry by collecting relevant evidences by way of oral as well as documentary. After satisfying based on such evidences the respondent ascertained that prima facie case was clearly made out against the petitioners and now investigation is in progress. It is further submitted htat the petitioners are free to submit any documents and materials to prove that they had sufficient source of income and the same can be considered during investigation. In any event, on conclusion of investigation final opportunity notice would be given to the petitioners who can give their explanation and the same will be considered. Thereafter only, final report would be filed before the Trial Court. The contention of the petitioners is pre-mature and cannot be considered at this stage. Hence, opposed the petitioners' contention.

9. Considering the submissions made and on perusal of the materials, it is seen that in this case, earlier on the directions of the Director of Vigilance and Anti-Corruption, the Sivagangai Detachment conducted preliminary enquiry and collected materials against the petitioners, enquired the witnesses and final opportunity notice though not required at that stage, it was given and the petitioners have given reply but not with any supporting documents. For submitting the documents they took more than six months but no documents submitted. Thereafter, the preliminary report submitted to the Director who considered the report, thereafter following the procedures and rules directed the present Investigating Officer to register a case and investigate. Thereafter FIR registered and investigation is in progress. The petitioners' contention seems to be that the first petitioner had submitted his property statements to his Department and the petitioners 2 to 6 project that they had independent source of income, the third petitioner claims to be a pawn broker and having a regular income. During the house search, two locker keys seized and when it was opened, in one locker pawning jewels found and in another locker, some temple jewels found. As regards of the disposal and calculation of the value of these documents, this Court considered the same in Crl.RC.Nos.782 and 784 of 2024. With regard to the purchase of properties by the petitioners 2 to 6, it is of their own source of income and they declared the same to the Income Tax Department. The Apex Court in the case of Suresh Rajan and Ponmudi clearly held that mere filing of Income tax returns would not be sufficient. The Income tax returns needs further explanation and clarification. This can be considered at a later stage and not at the stage of pending investigation. In any event, the respondent can call upon further details pertaining to the Income Tax returns of HUF income, agricultural income, share income, rice business, rental income and other business through which the petitioners 2 to 6 is said to have made their earnings. At this stage, the collection of materials and the explanation of the petitioners alone to be collected and considered. The contention of the petitioners is that with an illegal motive the petitioners were arrayed as accused. The motive is a question of fact which cannot be decided at this stage without details and particulars. The points raised by the petitioner cannot be considered at this stage and investigation cannot be short circuited. This Court as well as the Apex Court in several cases held that the quashing of FIR cannot be done as a matter of routine and only in exceptional cases where there is any legal bar, FIR can be quashed. In this case there is no such contingency. Hence, this Court finds no reason to interfere with the investigation.

10. In the result, the Criminal Original Petition stands dismissed. Consequently, connected miscellaneous petition stands closed.