Jammu & Kashmir High Court - Srinagar Bench
State Of Jk Through Ssp, Vigilance ... vs Anil Jain And Others on 11 October, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRMC No. 197/2017
C/w
CRR No. 27/2017
Date of Order: 11.10.2018
State of JK through SSP, Vigilance Organization Kashmir, Srinagar
Vs.
Anil Jain and Others
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr N. H. Shah, AAG in CRMC No. 197/2017
Mr Sunil Sethi, Senior Advocate with Mr Parimoksh Sethi, Advocate
in CRR No. 27/2017
For respondent(s): Mr Anil Jain, Advocate for R1 in CRMC No. 197/2017
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. These two petitions, which raise common and akin questions of facts and the law, have been clubbed together and shall be determined conjointly.
2. In the petitions, the respective petitioners seek quashment of the order dated 15th of June, 2017, passed by the Court of the learned 1st Additional Sessions Judge, Baramulla (Special Judge under the Prevention of Corruption Act, for the Districts of Baramulla, Kupwara and Bandipora) in case bearing FIR No. 43/2000 registered at Police Station, Vigilance Organization, Kashmir.
3. The string of incidents, as these emerge from the study of the files under consideration, are that a case was registered at Police Station, VOK, on a complaint received from the Principal Secretary to the Government, Industries and Commerce Department, J&K, Srinagar, alleging therein that an exorbitant rent of Rs.43 lacs has been drawn and disbursed in favour of one Gh. Mohammad Khan by the respondent Nos. 1 to 3 herein for the occupation of the industrial units/ residential accommodation of Soura Group of Industries, situated at Batergam, Kupwara, by the security forces from the years 1989 to CRMC No. 197/2017 C/w CRR No. 27/2017 Page 1 of 20 1996. It was further alleged that the said amount has been released in favour of Shri Gh. Mohammad Khan against an entitlement of less than Rs. 3 lacs. On the basis of the aforesaid information, a case bearing FIR No. 43 of 2000 was registered at Police Station VOK under Section 5 (2) of PC Act read with Sections 420, 201 and 123 of the RPC, with which the investigation ensued. During the course of the investigation of the case, the evidence in the form of documents was collected and the statements of the witnesses conversant with the facts of the case, were also recorded. During this process, it precipitated that Gh. Mohammad Khan had represented to the Home Department claiming rent in respect of his industrial unit occupied by the security forces. The Home Department had referred the case to the Deputy Commissioner, Kupwara, to make rent assessment of the unit alleged to have been occupied by the security forces through the rent assessment committee While the rent case was pending disposal before the Deputy Commissioner, Kupwara, Gh. Mohammad Khan represented to the Deputy Commissioner, Kupwara, for referring the matter relating to the assessment of the rent to the Tourism Department as, according to him, it was a Category B Hotel, for which the assessment could only be made by the Tourism Department. The investigation further revealed that the respondent No. 1 herein in furtherance of a criminal conspiracy with other persons and without following the due procedure, gave undue benefit to the said Gh Mohammad Khan by issuing a certificate in which this accommodation had been reflected and portrayed as a B category Hotel. The said certificate came to be issued by the respondent No.1 herein without making a spot verification and knowing it well that the area in question did not fall within the tourist notified area as envisaged under the Tourism Trade Act and that it was not registered as a "Hotel" under the Act. The accommodation also did not qualify the standards of a B-Category hotel. The respondent No.1 herein had kept all the related correspondence with regard to the categorization of accommodation in his personal custody and handed over the categorization certificate to the Home CRMC No. 197/2017 C/w CRR No. 27/2017 Page 2 of 20 Department. This had become the basis for the release of more than 40 lacs to Gh Mohammad Khan thereby causing a great loss to the State exchequer. The certificate was issued by the respondent No.1 herein wilfully and dishonestly. The investigation further revealed that the respondent No.2 herein (Shri Rajinder Koul), the then AAO Home Department, in furtherance of a criminal conspiracy with the other accused persons gave undue benefit to Gh Mohammad Khan. The respondent No.2 herein processed the rent file claimed for the accommodation in question under the garb of the Government Order No.408(ISA) 1991 dated 21st of August, 1991, knowing it fully well that the said order is applicable only to the accommodations located at Srinagar and, that too, which fall within the definition of the "Tourist Notified Area". The respondent No.2 herein with an ulterior motive concealed and willfully destroyed some of the vital documents bearing evidentiary value relating to the processing of the rent claim and, as such, had committed an offence under Section 201 RPC. During the investigation, it was also been proved that the respondent No.3 herein (Rajinder Koul), the then CAO/FA Home Department, in his capacity as the Financial Advisor, hatched a criminal conspiracy with the other accused persons while processing the rent claim in question and had maliciously misinterpreted the Government Order No.408 (ISA) 1991 dated 21 st of August, 1991, by ignoring the previous notings in the matter so as to put the State exchequer to loss. Rajinder Koul had willfully omitted to point out the irregularities in the categorization certificate issued by the respondent No.1 herein. In order to pay undue benefit to Gh Mohammad Khan he had misquoted the Government Order and had on his own added a line that the verification in this regard has been made by the Deputy Commissioner, Kupwara. The investigation conducted established that the accused Nos.1 to 4 in furtherance of criminal conspiracy succeeded in getting the release of Rs.43,33,380/- from the State exchequer for the rent of the industrial units/residential accommodation against the genuine entitlement of the rent for the said accommodation assessed CRMC No. 197/2017 C/w CRR No. 27/2017 Page 3 of 20 by the Executive Engineer R&B, Division Kupwara, to the tune of Rs.2,46,664/- and, in this process, the accused persons are said to have caused a loss of more than Rs.40 lacs to the State exchequer. Accordingly, the investigation of the case was concluded as proved under Section 5(2) J&K PC Act read with Section 420, 201, 120-8 RFC and after obtaining the sanction for the prosecution of the in service accused public servants, a report in terms of Section 173(2) Cr. P.C. was laid before the Court of the learned Special Judge Anti-Corruption Srinagar against Gh Mohd Khan (now deceased), Anil Jain the then Deputy Director Tourism, Kashmir (respondent No.1 herein), Rajinder Koul the then AAO Home Department (respondent No.2 herein) and Subhash Chander Jandial the then CAO/FA Home Department (respondent No.3 herein) for the commission of offences under Section 5(2) of J&K PC Act read with Sections 420, 201 and 120-8 RPC. After laying the final report before the learned Special Judge Anti-Corruption Srinagar, the learned Judge in terms of the order dated 16th of April, 2012, returned the same with the direction to conduct further investigation in the matter and while doing so, it was pointed out by the learned trial Court that a pick and choose policy has been adopted by the State in sending the accused to face the trial and they have been discriminated against. This order dated 16th of April, 2012, was challenged before this Court through the medium of a petition filed under Section 561-A of the Code of Criminal Procedure, bearing No. 227/2012. On the consideration of the petition, this Court set aside the order dated 16th of April, 2012, to the extent to which it directed the return of the charge sheet to the IO. The other part of the order as it related to further investigation was, however, maintained. After conducting further investigation in the case, no incriminating material was found against the other persons and, accordingly, two separate supplementary charge sheets were filed before the learned trial Court of Special Judge under the prevention of corruption Act for the Districts of Baramulla, Kupwara and Bandipora and the proceedings of the case were revived by their re-institution.
CRMC No. 197/2017 C/w CRR No. 27/2017 Page 4 of 20In these charge sheets, the stand of the Investigating Officer as taken earlier in point of time did not shift and no addition was made in the array of the accused in the said supplementary charge sheets. After the submission of the supplementary charge sheets, the learned trial Court, instead of framing the charge against the accused, in terms of order dated 15 th of June, 2017, without any justification, deferred the framing of charge against the accused in attendance and passed an erroneous direction by illegally taking recourse to Section 351 of Cr. P.C. The Court issued process against one Shri LS Malhi the then ACS (Home) and Mr. B. R. Sharma the then Deputy Commissioner Pulwama. The learned trial Court directed the petitioner to approach the competent authority for obtaining sanction for launching prosecution against Mr B. R. Sharma, who is still in service and has filed the other petition which is registered as Criminal Revision No. 27/2017. The operative part of the order notices the following:
"In the circumstances, whilst deferring the question of framing of charge against the three accused person, named in the charge-sheet:-
(i) Process for commission of offences made punishable under Section 5(2) of Prevention of Corruption Act read with Section 5 (1) (d) of the Act (supra) and offences made punishable under Section 420 and 201 of RPC read with Section 120-B of the Code (supra) is issued to Shri I. S. Malhi S/o Aroor Singh R/o Devendar Vihar-56 Flat No. 5085, Gurgaon, Delhi the then ACS(Home), for 30th of August, 2017.
(ii) As far as Shri Brij Raj Sharma S/o Palav Nabh Sharma R/o House No. 269-A Gandhi Nagar, the then Deputy Commissioner, Kupwara, is concerned , directive is issued to the Director, J&K Vigilance Organization, to approach the competent Government (authority) and seek permission for launching prosecution against him and submit a report regarding the regarding the steps taken by him on that behalf, to this Court on the next date of hearing and if any record is required by him, for the said purpose, from this Court, he would at liberty to approach this Court for the same;
(iii) Director, J&K Vigilance Organization, is further directed to personally look into another crucial aspect of the controversy regarding the property left behind by the deceased accused No. 1, as it has been reported in the charge-sheet, including the two supplementary charge-sheets, that no property whatsoever is available in the name of the said deceased accused No. 1 and, therefore, nothing can be done to recover the amount which he had gained wrongfully as a result of the transactions constituting the subject matter of the present case.CRMC No. 197/2017 C/w CRR No. 27/2017 Page 5 of 20
Learned Special Public Prosecutor for the VOK is directed to make available a complete set of all the charge-sheet, including the two supplementary charge-sheets, which shall be forwarded to Mr. I. S. Malhi along with the process, by way of summons, to be issued against him."
4. Heard and considered.
5. The main thrust of the arguments of the learned counsel representing Mr Braj Raj Sharma is that the order dated 15th of June, 2017, passed by the Court of learned 1st Additional Sessions Judge, Baramulla (Special Judge under the prevention of Corruption Act, Samvat, 2006), whereby he has directed the Director, JK Vigilance Organization, to approach the competent authority (Government) and seek permission for launching prosecution against him and submit a report regarding the steps taken by him on that behalf, is against the canons of law. The essential limb of the argument of the learned counsel for the petitioner is that in view of the phraseology of Section 354 of the Code of Criminal Procedure, the learned trail Court had no power to array Shri I. S. Malhi, as an accused in the case which was within the exclusive domain and power of the investigating agency, as it was neither at the stage of the enquiry nor during the trial that such an order was passed.
6. As regards the main pillar and the shaft of the argument of the learned counsel for the petitioner in the revision petition, there is all force and substance in his contention that a valid sanction for the prosecution of a public servant (which the petitioner in the revision petition is) gives the court the teeth and jurisdiction to proceed further in a given case for the offences detailed in Section 6 of the Prevention of Corruption Act, This Section runs under the head "Previous sanction necessary for prosecution", and is reproduced below, verbatim for the convenience of ready reference:
"6. Previous sanction necessary for prosecutions. - (1) No Court shall take cognizance of an offence punishable under Section 161 [or Section 164] or Section 165 of the Indian Penal Code,1860, or under sub-section (2) [or subsection (3A)] of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction:CRMC No. 197/2017 C/w CRR No. 27/2017 Page 6 of 20
(a) in the case of a person who is employed in connection with the affairs of the [Union] and is not removable from his office save by or with the sanction of the Central Government, [of the] Central Government;
(b) in the case of a person who is employed in connection with the affairs of [a State] and is not removable from his office save by or with the sanction of the State Government, [of the] State Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed."
7. From a bare perusal of the language and phraseology within the framework and bulwark of which Section 6 of the Prevention of Corruption Act, is woven it is evident that the grant of sanction or otherwise is the exclusive prerogative of the competent authority and the court has no power and authority to interfere in this power vested with the competent authority. The Sanction gives the court the clout and ascendancy to prosecute a person for the commission of the offences imputed to him. It is the competent authority that has the right to consider the question of the grant of sanction for the prosecution of a public servant and the competent authority is well within its bounds in declining the grant of sanction for the prosecution of a public servant. A cue can be had in this behalf from the law laid down by the Apex Court of this country in the case of "Mansukhlal Vithaldas Chauhan v. State of Gujarat, (SC)", reported in "1997 (3) Crimes 301", paragraph Nos. 14 to 19 of which are germane in the context of the decision of this issue and these read as under:
"14. From a perusal of Section 6, it would appear that the Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that "public servant" is to be prosecuted or not. Since the Section clearly prohibits the Courts CRMC No. 197/2017 C/w CRR No. 27/2017 Page 7 of 20 from taking cognizance of the offences specified therein, it envisages that Central or the State Government or the "other authority" has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction.
15. In Gokulchand Dwarkadas Morarka v. The King, AIR 1948 PC 82, it was pointed out that:-
"The sanction to prosecute is an important matter, it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as in expedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case."
16. In Basdeo Agarwalla v. Emperor, AIR 1945 FC 16, it was pointed out that sanction under the Act is not intended to be, nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness. This Court in State through Anti- Corruption Bureau, Government of Maharashtra, Bombay v. Krishanchand Khushalchand Jagtiani. (1996) 4 SCC 472, while considering the provisions of Section 6 of the Act held that one of the guiding principles for sanctioning authority would be the public interest and, therefore, the protection available under Section 6 cannot be said to be absolute.
17. Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government Servants against frivolous prosecutions. ( See: Mohd. Iqbal Ahmed vs. State of Andhra Pradesh, AIR 1979 SC 677). Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for the innocent but not a shield for the guilty.
18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning CRMC No. 197/2017 C/w CRR No. 27/2017 Page 8 of 20 authority. (See also: Jaswant Singh v. The State of Punjab, 1958 SCR 762 : AIR 1958 SC 12; State of Bihar & Anr. v. P.P. Sharma, 1991 Cr.L.J. 1438 (SC)].
19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuie satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."
8. Looking at the instant case from the perspective of the law laid down in the judicial precedent cited above, the Court has no power to direct the competent authority to accord sanction for the prosecution of a particular person. It also needs to be borne in mind that without a valid sanction the court cannot take the cognizance of offences spelt out in Section 6 supra. The existence of a valid sanction accorded by the competent authority is a condition precedent to the institution of the prosecution against a public servant. The Government/competent authority has an absolute discretion to grant or withhold the sanction. It is for the competent authority to assess and evaluate the material placed and produced before it and to find out whether a prima facie case against the person sought to be prosecuted is made out. It is well within the domain and area of the sanctioning authority to refuse the grant of sanction against a person sought to be prosecuted. The aim and object behind inserting and engrafting this provision appears to be that it works as a salutary safeguard to ensure that no false or malicious prosecution can pierce into the portals of the court of justice. The law as laid down by the Supreme Court in a catena of judicial pronouncements is that no court of special judge can take cognizance of an CRMC No. 197/2017 C/w CRR No. 27/2017 Page 9 of 20 offence except with the sanction of the competent/appropriate authority. Grant of sanction is not an acrimonious exercise, but a solemn duty which enforces protection to the Government servant against false prosecution and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
9. The sanctioning authority is obliged under law to apply its independent mind to the facts and circumstances of the case as also the material and evidence collected during the investigation of the case. The sanctioning authority has to derive satisfaction on the basis of the material produced before it and has to take a call whether the sanction for the prosecution of the public servant is or is not warranted to be accorded. For a sanction to be valid it is necessary that the sanctioning authority does not buckle, bend or yield to any influence exerted on it, nor has the sanctioning authority to act upon any decision forced on it. Grant of sanction is the absolute discretion of the sanctioning authority and this discretion cannot be influenced by any extraneous consideration. If the facts and circumstances of a case reveal that the sanctioning authority has succumbed to the dictates of any outside authority in the matter of the accord of sanction, the court can very well come to the conclusion that the sanctioning authority has acted mechanically and has not formed an independent opinion in making such a judgment. Therefore, it was not within the region, power and scope of the learned trial court to direct the investigating agency to seek sanction for the prosecution of the petitioner when the competent authority after scanning the entire material did not come to the conclusion that his involvement surfaces in the matter. In the absence of such a sanction the court had no power to proceed in the case as against the petitioner. Sanction has not been accorded by the competent authority for the prosecution of the petitioner in the revision petition. Therefore, one fails to understand as to how the learned Court below has carved out a case to implicate and inculpate the petitioner for the omissions and commissions assembled to him in the impugned order.
CRMC No. 197/2017 C/w CRR No. 27/2017 Page 10 of 2010. As per the order impugned, the learned trial Court has issued process for the commission of offences made punishable under Section 5(2) of Prevention of Corruption Act read with Section 5(1) (d) of the Act (supra) and offences/made punishable under Section 420 and 201 of RPC read with Section 120-B of the Code (supra) against Shri I.S. Malhi S/o Aroor Singh R/o Devendar Vihar-56, Flat No. 5085, Gurgaon, Delhi the then (ACS(Home).
11. The contention of the State is that the trial Court has been absolutely incorrect and wrong in holding that the provisions contained in Section 351 of the Cr. PC, as these apply to the State of J&K, are in tune and line with provisions contained in Section 319 of the Central Criminal Procedure Code as from the comparative analysis of these Sections, it is clear that their phraseology does not coincide and correspond to each other in any way. Section 319 of Cr. PC, It is stated empowers the Court to proceed against a person and array him as an accused and direct him to face the trial, if during the trial of a case from the evidence recorded it precipitates that such a person is guilty of the crime but on the other hand Section 351 of Cr. PC empowers the Court to direct the detention of a person, who is in attendance before the Court. This Section does not empower the Court to issue process against a person not arrayed as an accused. In the present case, the persons against whom the process has been issued were neither in attendance before the Court nor any evidence had come against them during the trial as the trial was yet to commence but even then the learned trial Court erred in issuing the process against the said persons. The trial Court was having no authority to issue any process against them for facing any enquiry or trial. The learned trial Court has misinterpreted the provisions and has erroneously derived the authority which the Court did not possess.
12. It is true that Section 319 of the Central Criminal Procedure Code and Section 351 of the Cr. PC as it applies to the State of Jammu and Kashmir run under different heads. Section 351 runs under the head "detention of the offender attending the Court" and it reads as under:
CRMC No. 197/2017 C/w CRR No. 27/2017 Page 11 of 20"1. Any person attending Criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned.
(2) When the detention takes place after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard."
13. Section 319 of the Central Criminal Procedure Code labelled under the head "Power to proceed against other persons appearing to be guilty of offence ", provides as under:
"(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub- section (1), then-
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
14. However, while interpreting the provisions of Section 351 of Cr. PC, this Court in the case of T. R. Kalra v. State reported in 2004 KLJ 396, held that once cognizance has been taken by the Magistrate he takes cognizance of an offence and not the offenders. Once he takes cognizance of an offence. It is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved. It is his duty to proceed against those person. The summoning of the additional accused is part of the proceedings initiated by taking cognizance of an offence. It is also held that at the stage of taking cognizance of the offence, provisions of CRMC No. 197/2017 C/w CRR No. 27/2017 Page 12 of 20 Section 190, Cr. PC would be applicable. Section 190 inter alia, provides that 'the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence. As per this provision, Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence the Magistrate under Section 204, Cr. PC is empowered to issue process to the accused.
15. On the analogy of the law laid down above, it is duty of the Court to find out who the offender(s) really is/are and once the Court comes to the conclusion that apart from the persons sent up by the police some other persons are also involved, it is the duty of the Court to proceed against him or them but the question for consideration is how and in what circumstances can an order directing that a particular person be arrayed as an accused or to put it in other words what is the mode and manner in which such an order can be passed.
16. In the case of Popular Muthiah v. State reported in (2006)7 SCC 296 , the High Court in exercise of its inherent powers directed further investigation of the case against the persons who were not charged sheeted and were not accused at the stage of trial and whom the high Court felt should have been included in the challan. The apex court of the country after taking an overall view of the matter, came to the conclusion that the inherent jurisdiction has to be exercised sparingly and only after applying the mind to the material on record so as to be satisfied that about the existence of a strong prima facie case against such persons and also whether any useful purpose will be served by issuing such direction particularly after a long lapse of time.
17. In the instant case, the FIR has been registered in the year 2000 and the order impugned has been passed on 15.06.2017, that is, after a great lull of 17 years. In the judgment of law cited above, the apex Court clutched the issue by directing at para No. 57 that having regard to the peculiar facts and circumstances of this case, we are of the opinion that before issuing the impugned directions, the High Court should have given an opportunity of CRMC No. 197/2017 C/w CRR No. 27/2017 Page 13 of 20 hearing to the appellants. On the set of the parameters evolved by the apex court of the country in the judicial dictum evolved above, it was incumbent on the part of learned trial Court to give an opportunity of being heard to Shri I. S. Malhi the then ACS (Home), before issuing process against him. Therefore, the order as it pertains to Shri I. S. Malhi suffers from an illegality and it can by no stretch of imagination be said that it has been passed in accordance with the law.
18. Time and again the scope of the jurisdiction of the High Court under Section 561-A of the J&K Code of Criminal Procedure, which is pari materia to Section 482 of the Central Code of Criminal Procedure, has been examined and several principles which govern the exercise of jurisdiction of the High Court under Section 561-A of the Code has been laid down. A three-Judge Bench of the Supreme Court in State of Karnataka v. L. Muniswamy and others 1977 (2) SCC 699, held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In paragraph 07 of the judgment following has been stated:
"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
19. The judgment of the Court in the State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 482 Cr. P.C. and Article 226 of the Constitution of India in the CRMC No. 197/2017 C/w CRR No. 27/2017 Page 14 of 20 context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements, the Supreme Court enumerated certain categories of cases by way of illustration, where the power under Section 482 Cr. P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102, which enumerates seven categories of cases where power can be exercised under Section 482 Cr. P.C. are extracted as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior CRMC No. 197/2017 C/w CRR No. 27/2017 Page 15 of 20 motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
20. A three-Judge Bench of the Supreme Court in State of Karnataka v. M. Devenderappa and another, 2002 (3) SCC 89, had an occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., the Supreme Court has laid down that the authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that the Court would be justified to quash any proceeding if it finds that the initiation/continuance thereof amounts to the abuse of the process of the Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6:
"6......All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
21. Further in paragraph 8 following was stated:
"8.....Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power CRMC No. 197/2017 C/w CRR No. 27/2017 Page 16 of 20 under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (AIR 1992 SC 604)."
22. In Sunder Babu and others v. State of Tamil Nadu, 2009 (14) SCC 244, the Supreme Court was considering the challenge to the order of the Madras High Court, where an Application was under Section 482 Cr.P.C. to quash the criminal proceedings under Section 498A IPC and Section 4 of Dowry Prohibition Act, 1961. It was contended before the Supreme Court that the complaint filed was nothing but an abuse of the process of the law and the allegations were unfounded. The prosecuting agency contested the petition filed under Section 482 Cr.P.C., taking the stand that a bare perusal of the complaint discloses commission of the alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. The Supreme Court after referring to the judgment in Bhajan Lal's case (supra), held that the case fell within Category 07. The Supreme Court, relying on Category 07, has held that Application under Section 482 deserved to be allowed and it quashed the proceedings. Insofar as the present case is concerned, it also squarely falls within Category 07 as laid down by the Supreme Court of in Bhajan Lal's case (supra).
23. In another case in Priya Vrat Singh and others v. Shyam Ji Sahai 2008 (8) SCC 232, the Supreme Court relied on Category 07 as laid down in State of Haryana v. Bhajan Lal (supra). In the above case the Allahabad High Court had dismissed an Application filed under Section 482 Cr.P.C. to quash the proceedings under Section 494, 120-B, and 109 IPC and Section 3 and 4 of the Dowry Prohibition Act. After noticing the background facts and parameters for exercise of the power under Section 482 Cr. P.C., the Supreme Court has held that Section 482 Cr. P.C. does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent CRMC No. 197/2017 C/w CRR No. 27/2017 Page 17 of 20 jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine, which finds expression in the section, which merely recognises and preserves inherent powers of the High Courts. All courts, whether the civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of the administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under section 482 Cr.P.C/corresponding with Section 561_A of the Code applicable to the State of J&K, the Court does not function as a court of appeal or revision. Inherent jurisdiction under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of the justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, the court would be justified to quash any proceeding if it finds that the initiation / continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.
CRMC No. 197/2017 C/w CRR No. 27/2017 Page 18 of 2024. The powers, as noticed above, possessed by the High Court under Section 561- A of the Code, are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See: Janata Dal v. H.S.Chowdhary, AIR 1993 SC 892; Raghubir Saran (Dr.) v. State of Bihar, AIR 1964 SC 1; and Minu Kumari v. State of Bihar, AIR 2006 SC 1937]
25. Inherent power, given the above discourse, given to the High Court under Section 482 Cr. P.C. is with the purpose and object of advancement of the justice. In case the solemn process of the Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by the Supreme Court in State of Haryana v. Bhajan Lal (supra). Judicial process is a solemn proceeding, which cannot be allowed to be converted into an instrument of the operation or harassment. When there is material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court or for that matter this Court will not hesitate in exercise of its jurisdiction under Section 561-A Cr. P.C. to quash the proceeding under Category 06 as enumerated in State of Haryana v. Bhajan Lal (supra), which is to the following effect:
CRMC No. 197/2017 C/w CRR No. 27/2017 Page 19 of 20"(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party."
26. Based on the holistic consideration of the facts and circumstances summarised in the foregoing paragraphs, the present case appears to be one where Category 06 of the illustrations given in the case of State of Haryana v. Bhajan Lal (supra) is clearly applicable.
27. The matter as it relates to Shri I. S Malhi, who has since retired and for whose prosecution sanction is not required is remitted to the trial Court for accord of fresh consideration. It shall issue notice to him and the State and shall pass an appropriate order as it deems fit and proper in accordance with law.
28. Viewed in the context of all that has been said and done above, the impugned order dated 15th of June, 2017, passed by the Court of learned 1 st Additional Sessions Judge, Baramulla (Special Judge under the Prevention of Corruption Act, for Districts of Baramulla, Kupwara and Bandipora) in case titled State vs. Gh. Mohammad Khan and ors., arising out of case FIR No. 43/2000 of Police Station, VOK, for the commission of offences punishable under Sections 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act, Section 420 and 120-B of the RPC, does not stand the test of reason, logic and the law as a sequel to which the same is quashed alongwith all the proceedings emanating therefrom. However, as regards Mr I. S. Malhi, who has retired from service and for the persecution of whom accord of sanction is not a condition precedent the learned trial Court shall consider his case in accordance with the mandate of law after giving him due opportunity of being heard.
(M. K. Hanjura) Judge Srinagar 11.10.2018 "Manzoor"
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