Jammu & Kashmir High Court
Suman Lata Bhagat vs State Of J&K on 1 February, 2016
Equivalent citations: AIR 2016 JAMMU AND KASHMIR 52
Bench: Muzaffar Hussain Attar, B. S. Walia
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPA 15 OF 2013 AND LPA 21 OF 2013 SUMAN LATA BHAGAT Petitioners STATE & ORS Respondent !M/s. PRANAV KOHLI WITH ABHINAV SHARMA, ADVOCATES ^M/S. JEHANGIR IQBAL GANAI, LD. ADVOCATE GENERAL HONBLE MR. JUSTICE MUZAFFAR HUSSAIN ATTAR , Judge HONBLE MR. JUSTICE B. S. WALIA , Judge Date: 01.02.2016 :J U D G M E N T :
LPAs 22/2013, 23/2013, 24/2013, 25/2013, 26/2013 & 29/2013 MUZAFFAR HUSSAIN ATTAR 01/ The core and fundamental issue involved in these Appeals is whether the Accountability Commission (for short Commission) is possessed of the power of initiating suo moto proceedings under the Jammu & Kashmir Acco 02/ Since the issue involved in these Appeals is common, they are, accordingly, being disposed of by this common judgement, e 03/ These Appeals have arisen out of the judgement of the learned writ Court dated 04th January, 2013, passed in a batch of 04/ The learned writ Court, vide aforesaid judgement, held regulation 9 of Jammu & Kashmir Accountability Commission Regulati 05/ Mr. Pranav Kohli, learned counsel appearing for the Commission, argued at great length. He, in support of his contention 06/ Mr. Jehangir Iqbal Ganai, learned Advocate General, appearing on behalf of the State of J&K, in unequivocal terms, sub 07/ M/s. U.K.Jalali, D.C.Raina, P.N.Raina & B.S.Salathia, learned Senior Counsel and Mr. Ajay Kumar, learned counsel, appeari 08/ Learned counsel submitted that jurisdiction of Commission to initiate action in terms of section 9 of Act of 2002 is con 09/ In addition, Mr. Salathia, learned senior Counsel, also referred to a Circular No. 3(V)/99/2 issued by the Central Vigila 2015(9)SCC 209, AIR 1979 Delhi 249, 210(10) SCC 744, 2010(12) SCC 599, AIR 1967 Bombay 472, AIR 1971 SC 517, 2003(3) SCC 321 10/ Learned counsel for the respondents, accordingly prayed for dismissal of these Appeals. 11/ Before dealing with the submissions made at the bar by learned counsel for the parties, the purpose for enacting the Act Jammu and Kashmir Accountability Commission Act of 2002 Object The main object enacting this Act is to provide a just, responsive and clean administration. It was felt that there must be
2. Definitions In this Act, unless the context otherwise requires:-
(1) Accountability Commission means the institution established under section 3;
(2) action means action taken by way of decision, recommendation or finding or in any other manner and includes failure to (3) allegations in relation to a public functionary includes any affirmation that such public functionary in his capacity a (a) is guilty of corruption, favoritism, nepotism or lack of integrity; (b) was actuated in the discharge of his functions by personal interest or improper or corrupt motive; (c) has abused or misused his position to obtain any gain or favour to himself or to any other person to cause loss or undue (d) Has failed to act in accordance with the norms of integrity and conduct which ought to be followed by the public, functi (e) or any person on his behalf is in possession or has at any time during the period of his office been in possession, for (4) Chairperson means the Chairperson of the Accountability Commission appointed under clause (a) of sub-section (2) (5) Chief Minister means the Chief Minister of the State; (6) Competent Authority in relation to a public functionary means the Governor of the State. (7) corruption, includes anything made punishable as such under Chapter IX of the Jammu and Kashmir State Ranbir Penal (8) Governor means the Governor of the State;
(11) Member means a member of the Accountability Commission appointed under clause (b) of sub-section (2) of sec (12) Minister means a member (other than the Chief Minister) of the Council of Ministers and includes a Deputy Chi (13) Notification means a notification published in the Government Gazette and the expression notified shall be c (15) prescribed means prescribed by rules made under this Act; (16) Public functionary means a person who is or
(i) the Chief Minister or a Minister;
(ii) the Speaker or Deputy Speaker of the State Legislative
Assembly;
(iii) the Chairman or Deputy Chairman of the State Legislative
Council;
(iv) a Member of the State Legislature;
(v) Advisor to Governor;
(vi) Advisor including the Political Advisor to Chief Minister or
the Government;
(vii) given the status of a Minister or Minister of State by the Government in connection with the discharge of his functions;
(viii) appointed by the Government as Chairman (other than a Government servant of any statutory corporation or aut
Explanation:- For purposes of this clause the term Minister includes a Minister of State and a Deputy
(17) State means the State of Jammu and Kashmir.
3. Establishment of Accountability Commission
(1) As from the commencement of this Act, there shall be established, for the purpose of conducting investigations and in
(2) The Accountability Commission shall consists of-,
(a) a Chairperson who has been a Judge of the Supreme Court or Judge of any High Court; and
(b) such other Members, if any, as may be prescribed:
Provided that a person shall not be qualified for being appointed as a Member unless he has been a Judge of the High Court.
(3) The Chairperson and every other Member shall, before entering upon his office, make and subscribe before the Governo (4) A vacancy occurring in the institution of Accountability Commission shall be filled in as soon as possible.
4. Appointment of Chairperson and Members The Chairperson and Members, if any, shall be appointed by the Governor by warrant under his hand and seal:
Provided that every appointment under this section shall be made after obtaining the recommendations of a Committee consisti
(a) the Chief Minister Chairman
(b) the Speaker of the the Legislative Assembly Member
(c) the Chief Justice of the High Court of Jammu and Kashmir Member
(d) the Law Minister of the State Member
(e) the Leader of Opposition in the Legislative Assembly Member Provided further in case, there is no Leader of Opposition in the Legislative Assembly, the Leader of the single largest grou
7. Removal of Chairperson or Members (1) The Chairperson or a Member of the Accountability Commission shall not be removed from his office except by an order made (2) Before passing a Resolution to address the Governor under sub-section (1), the Speaker of the Legislative Assembly shall
9. Jurisdiction of Accountability Commission (1) Subject to the provisions of this Act, the Accountability Commission may investigate any action which is taken by or wit Provided that the Accountability Commission shall not inquire into any matter involved in or arising from, or connected with (2) The Accountability Commission may inquire into any act or conduct of any person other than a public functionary in so fa Provided that the Accountability Commission shall give such person a reasonable opportunity of being heard and to produce evi (3) No matter in respect of which a complaint may be made under this Act shall be referred for inquiry under the Jammu and Ka
10. Matters not subject to jurisdiction of Accountability Commission (1) The Accountability Commission shall not inquire into any matter concerning any person if the Chairperson or any Member h (2) In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Accountabili
11. Provisions relating to complaints (1) Subject to the provisions of this Act, a complaint may be made under this Act, to the Accountability Commission; by any p (2) Every complaint shall be made in such form and in such manner and shall be accompanied by such affidavit as may be prescr (3) The contents of the complaint shall not be made public till its scrutiny by the Accountability Commission under Section
12. Preliminary scrutiny of complaints by Accountability Commission (1) If the Accountability Commission is satisfied, after considering a complaint and after making such verification as it (2) The procedure for verification in respect of a complaint, under sub-section (1) shall be such as the Accountability Comm
13. Procedure in respect of inquiries (1) The concerned public functionary shall present his defence within a period of two months and the competent authority ma (2) Every inquiry shall be conducted by the Chairperson and the Members, if any, sitting jointly and the place in which such Provided that in exceptional circumstances and for reasons to be recorded in writing, such inquiry may be conducted in camera (3) The Accountability Commission shall hold every such inquiry as expeditiously as possible and in any case complete the in Provided that the Accountability Commission may, for reasons to be recorded in writing, complete the inquiry within a further (4) Save as aforesaid, the procedure for conducting any such inquiry shall as the Accountability Commission considers approp
16. Interim recommendations If during the course of preliminary inquiry or investigation under this Act, the Accountability Commission is prima facie th
17. Power of inspection The Accountability Commission or any officer authorized by it shall have the power to inspect any office of the Government,
18. Secrecy of preliminary inquiry or investigation Every preliminary inquiry or investigation under this Act shall be conducted in private and in particular, the identity of t
19. Secrecy of information (1) Any information obtained by the Accountability Commission or its staff or any other officer, person or agency in the cou (2) Nothing in sub-section (1) shall apply to the disclosure of such information or evidence,-
(a) for the purpose of any report to be made under this Act; or for the purposes of any action or proceedings to be taken on
(b) for the purpose of any proceedings, for an offence under the State Official Secrets Act, Samvat 1977, or for an offence o
(c) for such other purpose as may be prescribed.
20. Power to punish for contempt (1) The Accountability Commission shall have and exercise the same jurisdiction, powers and authority in respect of contemp (2) The Accountability Commission shall be deemed to be Court within the meaning of Jammu and Kashmir Contempt of Courts Act
21. Reports of Accountability Commission (1) After the conclusion of inquiry under section 13 the Accountability Commission shall determine whether all or any of the (2) The Accountability Commission shall in its report recommend to the competent authority that injustice or hardship shall (3) The competent authority shall examine the report forwarded to it under sub-section (1) and take such action as it may de (4) The competent authority shall communicate to the Accountability Commission within a period of 90 days from the date of r (5) Notwithstanding anything to the contrary contained in any other law for the time being in force-
(a) If any sanction is required under any law for taking cognizance of any case or for initiating any proceedings against an
(b) Where a Court of competent jurisdiction finds that any public functionary has acquired any property, moveable or immovea
22. International insult or interruption to Accountability Commission (1) Whoever intentionally offers any insult, or causes any interruption, to the Accountability Commission while the Accounta (2) The provisions of section 198-B of the Code of Criminal Procedure, Samvat 1989, shall apply in relation to an offence re
23. Powers of Accountability Commission to try certain offences (1) When any such offence as is described in sub-section(1) of section 22 is committed in the view of presence of the Accou (2) In every case tried under this section, the Accountability Commission shall record the facts constituting the offence wi (3) Any person convicted on a trial held under this section may appeal to the High Court which shall be heard and decided by (4) The provisions of this section shall have effect notwithstanding anything contained in the Code of Criminal Procedure, S
24. Penalty for mala fide complaint (1) Every person who makes any complaint which he knows or has reason to believe that the same is false, frivolous or vexat (2) When any offence under sub-section (1) is committed, the Accountability Commission may take cognizance of the offence an Provided that this shall not debar the public functionary to pursue any other remedy or relief under any law against the comp
29. Power to delegate The Accountability Commission may, by general or special order in writing, and subject to such conditions and limitations as
31. Power of Accountability Commission to make Regulations (1) The Accountability Commission may, by notification, make such regulations as it may deem necessary for carrying out the p (2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any
(a) holding of sittings of the Accountability Commission;
(b) holding of sittings of the Accountability Commission at other than the place of ordinary sittings;
(c) procedure which may be followed by the Accountability commission for conducting proceedings including inquiry and investi
(d) forms in which complaints may be made and the affidavits which may accompany such complaint and the fees if any which ma
(e) such forms and notices as may be necessary in the opinion of the Chairperson of the Accountability Commission for carryin Jammu and Kashmir Accountability Commission Rules, 2005
5. Form and contents of the complaint (1) Every complaint shall be made as far as possible in Form A prescribed in the Schedule duly signed and supported by an (2) The complaint regarding allegations and grievances may be presented before such officer as may be notified by the Secret (3) The complaint may be presented in person or sent by registered post. Such complaint shall be provisionally registered /en (4) Every complaint shall be accompanied by three copies for the Commission and such other numbers of copies as the Public fu
6. Contents of affidavit (1) Every affidavit shall be drawn up clearly and legibly. It shall be sworn in before a Judicial Magistrate, an Executive Ma (2) Every person making an affidavit shall state his full name, surname, age, profession or trade and place of residence and (3) Every affidavit shall conclude as follows:
I do hereby swear in the name of God/Solemnly affirm__________________that this is my name and signature/thumb-impression___________________and that the contents of this affidavit are true. I further swear that wha
8. Scrutiny and registration of regular complaints (1) On receipt of the complaint the Registrar shall examine the complaint, affidavit and accompanied documents and report as (2) If the Registrar is of the opinion that the complaint is not in conformity with the provisions of the Act or the rules or (3) When the complainant is directed to remove the defects within the specified period stipulated in the notice and if the de (4) All the complaints shall be placed before the Commission for appropriate orders. However, the complaints regarding which (5) Every person making the complaint shall be informed of the substance of the orders passed under the preceding rule, if no Jammu and Kashmir Accountability Commission Regulations, 2005 9 Procedure in suo moto actions In cases where the Commission intends to take suo moto action, the substance of the allegations shall be examined by the Reg 12/ The Court, in one of the judgements, has highlighted the lethal effect, which the corruption has on the society. Parag 18. The court is not oblivious of the fact that providing such kind of projections and facilitates depend upon the economi
19. The insatiable human greed has caused irreparable damage to the economic and moral fabric of the society. The unbridled
20. The greatest challenge to the body politic is from hydra-headed monster of corruption. The menace of corruption has corro
21. To ward off all evil effects of corruption, lawful rule is imperative. It is seen and is of common knowledge that corru 13/ Similarly the Court, in case titled Viom Networks Limited versus State of J&K, reported in AIR 2013 J&K 93 has further 23. Our country is possessed of immense human and material/natural resources. We the people are masters and have to be be
24. For variety of reasons, a section of population got captured to an advantageous position and the vast majority suffered a
26. The issue is to be looked at from another stand point as well. In our constitutional scheme representatives of the people 14/ A bare look on the provisions of the act of 2002 and Rules of 2005 would show that neither the legislature nor the Rule M 15/ In view of the arguments advanced at bar by learned counsel for the respondents, in the ordinary course of things, these 16/ The penal laws in the shape of Prevention of Corruption Act Svt. 2006, Ranbir Penal Code Svt 1989 (1932 A.D) to deal wi 17/ In terms of original Act of 2002, the officers appointed to civil and public posts in connection with running the affa 18/ A human being is a superior creation of the Creator. A human being in itself constitutes a complete universe. The forces 19/ The creation of Accountability Commission, through legislative process, is an essential component of having a society,
(a) The Chief Minister Chairman
(b) The Speaker of the the Legislative Assembly Member
(c) The Chief Justice of the High Court of Jammu and Kashmir Member
(d) The Law Minister of the State Member
(e) The Leader of Opposition in the Legislative Assembly Member 20/ The Accountability Commission as is established in terms of section 3 of the Act of 2002, thus, would comprise of the per 21/ In contradistinction to the Act of 2002, the State Legislature, in order to deal with the civil servants, has, by a legi 22/ The persons, who are charged with the onerous and responsible duty of investigating or enquiring into the actions and/o 23/ This effort of drawing parallels is being made in this decision to give real meaning to the purpose and object sought to 24/ In view of the aforesaid discussion, a question of legal and fundamental constitutional importance, comes to fore ; why t 25/ Corruption corrupts the core human values. It denudes a human being of humanistic ideals. It transforms the human bein 26/ The people, who hold the high or low offices of trust, by dabbling in corrupt practices, subject large section of populat 27/ Corruption begets injustice. Injustice is incarnation of corruption in its worst form. Corruption produces an unjust soci 28/ In a democratic society like ours, which is governed by rule of law, providing of clean administration is sine quo non f 29/ For running its affairs, a democratic society makes laws, which are more or less in consonance with the natural laws and 30/ It is said that no virtue is absolute, nor even freedom. As is said and is a known fact that when in the womb of mother, 31/ The purpose of providing clean administration is the dominant intention of the legislature in enacting the Act of 2002.
32/ It takes a person years of hard work, devotion, commitment and honesty to catapult himself on the high pedestal of life 33/ But in order to achieve higher goals of life and for over all benefit of the society, Socrates drank cup of hemlock, 34/ Reverting to the Act of 2002, what emerges is that the institution has been created for cleansing public administration. 35/ In terms of aforementioned provisions, only a complaint, filed in the prescribed manner and proforma, can set into motio 36/ In achieving the holistic laudable purpose of providing clean public administration, can it be said that the legislature 37/ For arriving at the lawful conclusion, following proportions of law would require to be answered :
a/ What is the legal status of the Accountability Commission ;
b/ Can the purpose of legislature be achieved by restricting initiation of proceedings and conduct of investigation and/or e The reply to proportion (a) has to be as under :
The Accountability Commission has been constituted by Statute to accomplish the ultimate societal good of having a corrupt b/ The legislative intentment and purpose underlying the Act of 2002, would be rather defeated than being achieved, in case The Accountability Commission, in such circumstances, will be reduced to a mere ornamental institution. It will be reduced to 38/ The Statutes are to be interpreted for securing public good, as it is only for this reason that laws are enacted. Interp 39/ Already, in this judgement, the purpose of enacting the Act of 2002 has been briefly summarized. To further add to it, th 40/ Since the public functionaries, as defined in section 2(16) of the Act of 2002, survive in public life on the basis of pu 41/ True it is that public functionaries, as defined in the Act of 2002, hold their respective positions/offices as trustees 42/ What appears from the aforesaid statutory prescription is that after entertaining a complaint under the Act of 2002, a pr 43/ In the normal process of interpretation of Statutes, when an authority is created by the Statute through a legislative pr 44/ Looking at this legal position from yet another stand point, one can reach to same conclusion, in as much as, the Chairpe 45/ The apprehension projected by the learned Advocate General and learned senior counsel about the abuse of provisions of Ac 46/ The above discussion does lead to a legal conclusion that the Commission is an authority catapulted to a position higher 47/ The statement of objects and reasons for establishing the institution of Accountability Commission has been stated to pro 48/ In the aforementioned backdrop, the objection raised by learned counsel for respondents about maintainability of the Appe 49/ For our above recorded reasons, we allow the Appeals filed by the J&K State Accountability Commission. The judgement(s), 50/ Before parting with, it, however, needs a mention that Mr. Abhinav Sharma, learned counsel appearing for Appel 51/ Prayer allowed. Registry to segregate the lead case - LPA 15/2013 and list it separately.
Tariq MOTA JAMMU.
01.02.2016
(B. S. WALIA) ( MUZAFFAR HUSSAIN ATTAR) JUDGE