Officers who exercise the power of “Disciplinary Authority” must be clear about the distinction between cognizable and non-cognisable cases. Briefly, cognizable cases are those in which the police can register the First Information Report (FIR) and proceed with the investigation; whereas, non-cognizable cases are those where the police cannot investigate on its own and has to seek the orders from the magistrate if they want to investigate such cases. Schedule I to the Cr. P.C. gives details of cognizable or non-cognisable offences. This basic requirement must be clearly understood before the disciplinary authority proceeding to launch a criminal case against any Govt. servant.

In the second stage, the disciplinary authority must first prepare a brief gist of the acts of commission, omission and any other lapse before lodging a formal complaint with the police. Having listed the default, it would be worthwhile for the disciplinary authority to mention all the evidence available to establish the said default. This could include names of witnesses and names of persons having knowledge of the incident/default. The law courts place great reliance on documentary evidence; and, therefore, along with the default and the list of witnesses, it would be prudent to list out all the documents, which establish the complicity or involvement of the public servant in the alleged lapse/default.

A responsible officer who is well conversant with the case should be deputed to assist the police in the investigation. Normally, the person who might have conducted The enquiry/inspection during which the misconduct came to the notice should be the ideal person who should assist the police. This is necessary because it would take a long time for the police to start afresh and understand the procedure, rules, government resolution, Circulars, guidelines, etc. In the process, a lot of precious time is lost, during which, many a time, the persons involved are able to destroy the evidence. If a person who is well-conversant with the procedures, rules of the Deptt./office concerned etc. and how the misconduct was committed is asked to assist the police, the investigation can progress speedily.

Very often, when the police wants to scrutinize the relevant records, documents, files, etc. there is a lot of delay in making the records available either on account of some doubt whether the records should be made available to the police or not or some other reasons. It is therefore very necessary to understand that unless relevant records and documents are made available to the police, it cannot collect necessary evidence against the public servant concerned. Therefore, there should be absolutely no hesitation in co-operating with the police and making he required records available to them for speedy investigation.

The FIR (First Information Report) forms a very crucial part of the investigation papers and Courts of Law gives considerable weightage to this evidence. A dilatory FIR running into hundreds of pages does not serve any purpose. The tendency on the part of disciplinary authority to forward a voluminous audit report with a request to consider it as a FIR is not proper. A FIR has to be brief and to the point. It should bring out the alleged default and the criminal involvement, also mentioning the oral and documentary evidence to the extent possible. This is necessary not only to facilitate filing of the FIR but also help the Investigating Officer to focus on the alleged lapse rather than devoting time to matters which falls within the domain of department irregularity and not covered under the criminal breach of any of the provisions of the IPC (INDIAN PENAL CODE) or other statutes.

FIRs lodged on this basis would ensure a speedier disposal and it would be easier to secure connection of the delinquent. Experience has shown that when the FIR is not properly lodged and same is voluminous without highlighting the main lapse it allows the delinquent to take advantage of the various legal provisions and especially contained in the Indian Evidence Act.

A FIR in a cognisable offence is filed under section 154 of the CRPC and on the basis of various judicial pronouncement is has now come to be established that the FIR should be quick in point of time viz. much time should not be allowed to elapse between detection of the default and lodging of the complaint. The complaint should be precise and to the point and should contain all the ingredients as enumerated above. Such a FIR will ensure that the cases filed by the department with the police are dealt with expeditiously and properly.

There are certain provisions contained in the Indian evidence Act, which also need to be kept in mind both at the time of filing a FIR and during the investigation. These are mainly relating to recording of evidence during investigating, collection of documents, taking of samples of handwriting, their comparison by the experts and obtaining other expert evidence. The handwriting expert can give opinion only after they are able to compare the handwriting of the original documents with the suspected handwriting. Very often photocopies are sent for comparison. This is not proper .It should also be borne in mind that comparison is possible only with the suspected handwriting of the delinquent officer which has been proved by oral evidence of witnesses. The disciplinary authority, therefore, has to ensure that not only the FIR is properly drafted as also to ensure that all the documents as may be required for investigation are secured at the time of lodging the FIR. Photo copies of documents which are required by the Department during the pendency of the investigation of cases should be retained by the Department; otherwise the investigating officer finds himself handicapped if the department does not supply the original documents because of the requirement of the department. This happens in case of ledgers, account books, etc.

One more aspect that needs to be highlighted is that Govt. servants are provided certain protection under law from vexatious prosecutions. Therefore once the investigation has been completed the Investigating Officer will seek sanction for prosecution under section 197 of the Cr.P.C. or u/s 19 of the Prevention of Corruption Act. The sanction so accorded should be as per the format supplied to the concerned Competent Authority and it is to ensure that there is due application of mind as the Competent Authority may be called upon in any court of law to justify the grant of sanction. Needless to point out that sanction for prosecution must be given without undue delay. The Hon’ble High Court of Gujarat has laid down a time limit of 2 months for concerned authority to take the final decision the matter of sanction in well-known case of Shri Joseph v/s State of Gujarat.