Jammu & Kashmir High Court - Srinagar Bench
Mehboob Iqbal vs State Of Jk & Others on 15 October, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRR No. 17/2018 c/w
OWP No. 563/2018
CRTA No. 09/2018
Date of Order: 15th of October, 2018.
(i) Mehboob Iqbal vs. State of JK & Ors.
(ii) Mehboob Iqbal vs. State of JK & Ors.
(iii) Mehboob Iqbal vs. State of JK & Ors.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr B. A. Bashir, Senior Advocate with
Mr Sheikh Faraz Iqbal, Advocate.
For the Respondent(s): Mr N. H. Shah, AAG for R-1 & 2.
Mr Azhar-ul-Amin, Advocate for R-9.
None for R-3 to 8 & 10 to 19.
Whether approved for reporting in Law Journals, Press, etc.: YES
01. These petitions, which raise common and akin questions of facts and the law, have been clubbed together and shall be determined conjointly.
CRR No. 17/2018; IA No.01/2018:
Appearance as above.
02. Criminal Revision No. 17/2018 is directed against the order dated 31st of March, 2018, passed by the Court of learned 1 st Additional District Judge, CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 1 of 23 Special Judge, Anti-Corruption for the Districts of Baramulla, Kupwara and Bandipora.
03. The string of incidents, as these emerge from the study of the petition under consideration are that the petitioner, along with other persons (Pro forma respondents), has been maliciously implicated in an FIR bearing no.08/2009 by the Vigilance Organization (Respondent no.2) and after the culmination of the investigation of the case in the said FIR, a report in terms of Section 173(2) of the Cr. P.C. was laid in the Court of learned Special Judge, Anti-Corruption, Srinagar on 25th of September, 2012. However, the said matter was transferred to the Court of learned Special Judge, Anti-Corruption, Baramulla on 9th of November, 2013, upon re-organization and setting up of new Anti-Corruption Courts, in all the Districts of the Kashmir provision. After a considerable delay, the respondents opened their case. During the proceedings, the attention of the learned trial Court, was drawn towards the order dated 10th of April, 2009, passed by this Court, in a petition bearing No. 34/09, filed under Section 561-A of the Code of Criminal Procedure Code, titled 'Abdul Hamid Dar & Ors Vs State & Ors', wherein, this Court had categorically and unequivocally held that the respondent, must before holding the petitioners liable for any criminal act, make an endeavour to find an answer to the question whether the J&K Lands (Vesting of Ownership Rights to the Occupants) Act, 2001 (hereinafter referred to as "the Act") applies to the area and the land in question. The learned trial Court, on perusing and considering the direction of this Court, in terms of a well-reasoned order dated 25th of June, 2016, directed the SHO, Police Station, Vigilance Organization, Kashmir, to inform the Court by or before the next date of hearing whether, or not, any decision has been taken by the Government on CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 2 of 23 that count, after the Chief Secretary, had, way back in the month of July, 2009, directed the Department of Revenue to put the process on hold till the whole matter was reviewed from the legal angle. The respondent No.2, had, accordingly, approached the Department of Law, Justice and Parliamentary Affairs, with a copy of the order dated 25th of June, 2016, passed by the learned trial Court and had sought sanction to file a petition under Section 561-A, Cr. P.C. However, the department observed that the Court has simply sought information regarding the decision taken by the Chief Secretary and that the same does not amount to an abuse of the process of the law and, accordingly, forwarded the opinion of the then Advocate General to the law Department, with a direction to apprise the Court of the same. However, the Prosecution, in order to mislead the learned trial Court, concealed the opinion with respect to the applicability of the Act to the Gulmarg Development Authority and, instead, only placed the covering letter on record before the learned trial Court. The counsel for the accused No.1/ petitioner herein, on perusing the compliance report, noticed the mischief of the respondent No. 2, and, accordingly, filed an application under Section 94 of the Cr. P.C, beseeching the learned trial Court, to summon the documents, i.e. the opinion of the learned Advocate General and the Law Department as furnished by the Respondent Nos. 2 & 3, for the purpose of placing the same before the Court in compliance of the order dated 25th of June, 2016. The learned trial Court, vide order dated 24 th of February, 2018, listed the application for arguments on 17th of March, 2018. It was, accordingly, taken up and argued at length on the designated dated, i.e. 17 th of March, 2018, by both the parties. On the conclusion of the arguments, the learned trial Court directed that the matter be listed on 31st of March, 2018, for the pronouncement of the order on the said application. On 31st of March, 2018, when the matter CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 3 of 23 was taken up, the learned trial Court, did not pronounce any order on the application and, instead, ordered the next date of hearing in the matter as 7 th of April, 2018, for arguments on charge. The learned counsel impressed upon the learned trial Court about the appropriateness/ necessity of the order on the application, as it would clarify the question for determination as framed by this Court in its order dated 10th of April, 2009 and by the learned trial Court vide order dated 25th of June, 2016, in accordance with its order dated 17 th of March, 2018. The learned trial Court, despite the above stated facts, refused to pass an order on the said application and directed the matter to be listed for arguments on charge in complete deviation of the procedure. Aggrieved thereby, the petitioner filed a petition, bearing OWP No. 563/2018, titled as 'Mehboob Iqbal Vs State & Ors', under Section 104 of the Constitution of J&K, which came up for hearing before the High Court on 5th of April, 2018, and on the said date this Court called for the record of the trial Court. On the next date before the trial Court, i.e. 7th of April, 2018, the petitioner along with his counsel appeared before the learned trial Court and, on the basis of the order of this Court passed in the petition under Section 104, No proceedings were taken in the matter. The counsel for the petitioner/ accused No.1, however, on the same day made a verbal request for the inspection of the trial Court record (as the same was still available with the learned trial Court), which was allowed, and, on the inspection of the said record, no orders pertaining to the daily proceedings dated 17th of March, 2018 or 31st of March, 2018, were found on the file, but, on the 9th of April, 2018, one of the counsel was provided a copy of an order ante- dated as 31st of March, 2018, whereby, the learned trial Court had rejected the said application under Section 94 filed by the petitioner. It is this order dated 31st of March, 2018 that is the subject matter of challenge in this petition.
CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 4 of 2304. Heard and considered. The record as produced by the respondents has also been perused.
05. At the first blush, it will be imperative to reproduce the order dated 31st of March, 2018, hereinbelow, verbatim et literatim and it reads as under:
"Spl PP VOK Mr. Mushtaq Ah. Shah present. Accused except accused Nos. 10 and 15 with respective counsels present. Counsels representing the accused 10 & 15 submitted apps on their behalf seeking exemption of said accused from today's hearing. In view of grounds mentioned there, the applications are allowed and accused Nos. 10 and 15 exempted from personal appearance for today's hearing.
The instant case was listed for arguments on framing of charge. Meanwhile, on 24.02.2018, application came to be filled by the counsel for accused No.1 seeking the summoning of documents under Section 94 Cr. Pc. Contending that govt. vide its communication No. U. O. No. LD (ACQ) 2016/110/GAD (Vig0 Dt: 15.09.2016 communicated the decision incompliance of the order of court dated 25.06.2016, the same was withheld by prosecution maliciously. Spl PP VOK filed objections to the application resisting the same.
Heard the counsel for accused No.1 (applicant0 as also the Spl PP VOK on the point. Considered their submissions. Perused the file which reflects the filing of similar petition by counsel for accused Nos. 6 and 9 on 28.09.2016 enclosed with photo copies of communications bearing No. LD/RTI/2016/50 Dt: 22.09.2016 and No. U. O. No. LD (ACQ)2016/110/GAD (Vig) Dt: 15.09.2016, originals whereof had been sought to be obtained after taking on record the photo copies. The said application stands disposed off by virtue of order dated 06-04-2017. The application/ accused No.1 through the medium of instant application is seeking a similar direction requiring the prosecution to place on record document bearing No. U.O. No. LD (ACQ) 2016/110/GAD (Vig) dated:
15.09.2016. Since the matter stands already adjudicated upon by virtue of order above referred that is 06.04.2017, as such indulgence of court upon the same at this stage is not warranted. File shall come up for arguments viz-a-viz the framing of charge on 7-4-18.
List accordingly."
CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 5 of 2306. The relevant excerpts of the order dated 10th of April, 2009, passed by this Court in the petition filed under Section 561-A Cr. P.C. (561-A No. 34/2009), that have an important bearing on the matter, also require to be understood in their proper perspective and these are detailed below, word for word and letter for letter:
"Broadly speaking the alleged acts can be classified into main two categories:
Firstly, that the authorities have considered the cases of the petitioners while the provisions of the Act do not apply to the concerned area as such undue benefit has been conferred on the petitioners by processing their cases, fixing the price for the land and accepting money from them.
Secondly, that procedural irregularities, like receipt of application after the cut off date, convening meeting with the Divisional Commissioner, etc., have been committed to show undue favour to the petitioners.
So far the first allegation is concerned, I find the matter is undecided as even in the Government has not reached to any definite conclusion about the applicability or otherwise of the Act to the area. There are different views on the subject which is evident from the pleadings and the annexures on file itself. It is in this view that the Chief Secretary has directed to keep the matter on hold till it is examined from the legal angle. Special Secretary to Government has in this behalf conveyed the directions of the Chief Secretary to the Deputy Commissioner as under:
"The Chief Secretary has desired that the Revenue Department should be asked to put further proceedings, if initiated, on hold pending review of the whole matter from the legal angle."
During arguments, it was enquired from Mr. Shah, learned Dy. AG, whether the matter has been examined, if so, whether any final conclusion has been arrived at on it. But the learned Counsel informs the Court that no such decision has so far been taken by the Government. Though he states that certain other facts emerged from the investigation but I find the basic question which arises for determination is that whether the Act applies to the area and the land in question. The respondents must, before holding the petitioners liable for any criminal act, make an endeavor to find an answer to this question."
CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 6 of 2307. The order dated 25th of June, 2016, passed by the learned Special judge, Anti-Corruption, Baramulla, is also germane to the issue under consideration and the relevant extracts thereof require to be scanned/analyzed and these read as follows:
"As already noticed, in the opinion of this court, the aforesaid observations made by the Hon'ble High Court of J&K, have a bearing of crucial significance on the institution of the present charge-sheet and the same cannot be lost sight of while considering the matter for the purpose of framing of charge against the accused persons. It is noticed after going through the entire text of the Judgement made by the Hon'ble High Court that while commanding the Respondents not to hold the Petitioners liable for any Criminal Act till a definitive answer to the question of applicability of the Act (Supra) was found, the Hon'ble High Court desired that the matter regarding applicability or otherwise of the Act should be answered by the Government itself as the Chief Secretary to the Government of the State of the J&K was admittedly seized of the matter and that apart, the Petitioners as well as the Investigating Authority had projected the same grounds in support of their respective contentions regarding the applicability/non-applicability of the Act as has been done by the Investigating Authority in the ground submitted by it in the charge-sheet filed in the present case and the arguments advanced by the Ld.Counse1 for the accused persons at the time of framing of charge respectively, before this court. Since the Hon'ble High Court did not accept the view of either of the said two parties on the point, the only inference which can be drawn is that the Hon'ble High Court wanted the Government of the State of J&K to take a decision on the matter. That, in the opinion of this court, is the import of the observations and the direction made by the Hon'ble High Court and the argument of the Ld. Counsel for the accused persons that the question of applicability or otherwise of the Act was to be answered by the Government is, therefore, well merited. No new fact/s or grounds have been brought on record by the Investigating Authority to impel this court take a different view on the point. Further, there is nothing on record to suggest that any decision in that respect has been taken by the Government after the Chief Secretary to the Government of State of J&K directed the concerned department to put the matter on hold. The submission of the Ld. Special Public Prosecutor that grant of Sanction by the General Administration Department, headed by Chief Secretary of the State, was indicative of the fact that the view of the Investigating Authority regarding the non-applicability of the Act (Supra) has been accepted by the Government, in the opinion of this court, does not come to CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 7 of 23 the rescue of the prosecution for there is nothing in the Order granting Sanction for prosecution to show that the question regarding the applicability or otherwise of the Act in case of State land/s in question has been explicitly considered by the Sanctioning Authority and it is not even inferable that the direction made by the Hon'ble High Court on that behalf was brought to the notice of the Sanctioning Authority. The other argument of Ld. Special Public Prosecutor for the VOK on the point was that the accused persons could have approached the Hon'ble High Court with the prayer for initiating contempt proceedings against the Investigating Authority in case they were convinced that the Order of the Hon'ble High Court had not been obeyed in letter and spirit and the fact that none of the accused persons has chosen to do so, shows their acquiescence to the consistent view of the Investigating Authority regarding the non-applicability of the Act (Supra) in the present case, is also not justifiable as, in the opinion of this court, nothing prevents the accused persons from raising this issue before this court at the stage of framing of charge.
7. At this stage. I find it pertinent to advert briefly to the fact that the present charge-sheet was filed in pursuance of the Order dated 28.08.2012 passed by the Hon'ble Division Bench of High Court of J&K in case of Public Interest litigation, being Case No. WPPIL-09/12. A perusal of the sand Order (Supra) goes to show that it pertained to a number of cases against different public servants which, according to the Petitioners therein, were being delayed for grant of sanction for prosecution and the Hon'ble Division Bench of the High Court while directing that process for initiating prosecution be expedited, further command that charge-sheet in case of the retired Public Servants, in case of whom prior sanction for launching of prosecution was not required, shall be instituted immediately. It was in the said back ground that the first charge-sheet in the present case came to be instituted. However, the said order of the Hon'ble Division Bench did not, in any manner whatsoever, affect the direction made by the Hon'ble Single Bench while disposing of the Criminal Revision, U/Section 561-A of Cr. P.C.
8. After taking into account the fore-going discussion, I have no hesitation in observing that by instituting the present charge-sheet without waiting for the decision of the Government on the applicability or otherwise of the Act (Supra), the Investigating Authority has not acted in accordance with the direction (supra) made by the Hon'ble High Court of J&K. That said, the next question, of greater crucial significance, which rises for consideration is: What further course should be adopted by this court, in the given situation? Should this charge-sheet be returned to the Investigators with the direction to firstly get the opinion of the Government regarding the applicability or otherwise of the Act and CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 8 of 23 thereafter, proceed in the matter, as has been argued by the Ld. Counsel for the accused persons? Or, in the alternative, should this court itself make an endeavour to return a finding on the question of applicability or otherwise of the Act (Supra) and decide the question of framing of charge, accordingly?
9. However, after giving my thoughtful consideration to all the relevant facts and circumstances of the case, I am of the opinion that it is neither possible nor permissible to return the charge-sheet to the Investigating Authority, as is contended by the Ld. Counsel for the accused persons, on the ground that, as already noticed, there are two sets of allegations against the accused persons in the present case, the first one being regarding the conferment of benefits under the Act (Supra) to the accused beneficiaries when the Act did not apply and, the other with respect to procedural irregularities committed while processing the cases of the accused beneficiaries. Though different in nature, the second set of allegations is connected as well as dependent on the first set of allegations for in case it is held that the J&K State Lands (Vesting of Ownership Rights to the Occupants) Act 2001 is applicable, it would have one kind of consequences on the allegations with respect to procedural irregularities committed while processing the cases of the accused beneficiaries and, in case it is held that the Act (Supra) is not applicable then that would have different kind of consequences but, without being judgmental on the point, either of the situations would attract definite legal action. As far as the second option is concerned, in the opinion of this court, again it would not be appropriate for this court to, at this stage, take upon itself the onus of deciding the issue of applicability or otherwise of the Act (Supra) for not only that would amount to accepting the reasoning given by Ld. Special Public Prosecutor for the VOK regarding the institution of the charge- sheet without waiting for decision of the Government, which has been already rejected, here before, but at the same time it would not be consistent with the observation/direction made by the Hon'ble High Court. Therefore, in the opinion of this court, before taking upon itself to return a finding on the issue of the applicability or otherwise of the Act it would be appropriate to firstly ascertain as to whether, or not, the Government has taken any decision on the point and then proceed, further, in the matter accordingly. Moreover, the possibility of the issue having been already resolved by the Government cannot be ruled out for it was almost eight years ago that the matter came to the notice of the Chief Secretary to the Government of the State of J&K and he had directed the concerned Department not to proceed further in the matter which makes it further imperative to pass such a direction in the matter. In the given situation, it would be proper, in the fitness of things and interest of justice, to defer the issue of framing of charge and direct the SHO, Police Station Vigilance Organization Kashmir, to inform this Court by or before next date of CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 9 of 23 hearing that whether, or not, any decision has been taken by the Government in the matter after the Chief Secretary directed the Department of Revenue to put the process on hold till the whole matter was reviewed from legal angle, way back in the month of July 2008? If so, what is the decision? If not, it shall be open to the Vigilance Commissioner to approach the Government for appropriate decision in the matter, as per the direction made by the Hon'ble High Court? Besides being in furtherance of interest of justice, this direction would provide the Investigating Authority an opportunity to ensure compliance to the direction made by the Hon'ble High Court in its Judgement dated 10.04.2009 (Supra) and shall pave the way for this court to proceed in accordance therewith. It is expected that earnest and expeditious efforts shall be made by the Investigating Authority on that behalf so that the proceedings in the present case do not get further delayed.
10. Before parting, it is apt to reiterate that the arguments on the question of framing of charge were addressed by Ld. Counsel for the accused persons at length and besides that written arguments were also submitted during the hearing but in view of the fact that the moot question pertained to the applicability or otherwise of the J&K State Lands (Vesting of Ownership Rights to the Occupants) Act (Supra) as also the effect of observation/direction made by the Hon'ble High Court (supra) on the issue, the undersigned confined himself to the arguments addressed on this issue only.
11. In the circumstances, while deferring the decision on the question of framing of charge, the SHO, Police Station, Vigilance Organization Kashmir, is directed to inform this Court by or before the next date of hearing that whether, or not, any decision has been taken by the Government in the matter after the Chief Secretary directed the Department of Revenue to put the process on hold till the whole matter was reviewed from legal angle, way back in the month of July 2008? If so, what is the decision? If not, it shall be open to the Vigilance Commissioner to approach the Government for appropriate decision in the matter, as per the direction made by the Hon'ble High Court?
12. List on 17.09.2016 for further hearing. Ld. Special Public Prosecutor for the VOK shall accordingly inform the Court on the next date of hearing about the steps taken by the Vigilance Organization in compliance to this Order as also to ensure the presence of the Investigating Officer along with case diary on the next date of hearing.
13. A copy of this Order is forwarded to SHO, Police Station:
Vigilance Organization Kashmir for compliance.
Orders accordingly. Announced."CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 10 of 23
08. The broad features of the Prosecution case are that some Government officials including the then Deputy Commissioner, Baramulla, hatched a conspiracy with the beneficiaries to allot the land at Gulmarg under the Act. The focal point of the complaint was that the Act was not applicable to the land sought to be allotted, yet the land was allotted in favour of the beneficiaries in the year 2008, in furtherance of a criminal conspiracy. In order to accomplish the said conspiracy, the applications and the materials/documents connected therewith were manipulated in some cases and in some others, applications were received/ filed after the cut-off date slated in the Act. In order to bring home the conspiracy theory, the Prosecution alleges that a meeting was convened at the initiation of the then Divisional Commissioner vide his No. 961/62 dated 28 th of May, 2008, by the Government officials on 4th of June, 2008, in which it was decided to allot the land situate at Gulmarg in favour of the beneficiaries against the mandate of the Act. This, it is stated, was the first step in the conspiracy and then other acts like manipulating the record and accepting of applications beyond the cut-off date are said to have come into play.
09. The contention of the petitioner is that the whole conspiracy theory revolves round the plea as to whether or not the Act was applicable to the said land. The decision of the then Committee of officers to resolve the pending cases under the applicable provisions of the Act is sought to be criminalized by a faulty prosecution story. The question being of seminal importance, this Court vide its judgment dated 10th of April, 2009, cited above, while determining a petition filed under Section 561-A of the Code of Criminal Procedure Code titled 'Abdul Hamid Dar & Ors. v. State & Ors.' bearing No. 34/2009, for quashing the FIR No. 08/09, directed the State to decide this question in the first CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 11 of 23 instance. This Court classified the alleged acts into two categories as reflected hereinabove. However, the exquisitely crafted question was to determine the fact as to whether the J&K State Lands (Vesting of Ownership to Occupants) Act, 2001 (herein after called "the Act") was applicable to the area. The Prosecution case would, therefore, depend upon the applicability or non-
applicability of the Act. It is further contended that the Prosecution filed the charge sheet in violation of the said judgment of the Court delivered in the petitioner filed under Section 561-A of the Cr. P.C. bearing No. 34/2009, i.e. without deciding this question.
10. Be that as it may, the issue as to the applicability of the Act is now crystalized through legal opinions of the Law Department as well as the Advocate General, which in law are binding on the State. The note of the Chief Secretary dated 8th of September, 2016, on this count, is lucid in content and clear in details. It bears the signatures of the Commissioner/ Secretary, General Administration Department and the Secretary, Law Department also. Paragraph Nos. 34 and 35 of the said note are relevant for consideration here in this petition and these provided as follows:
"34. Since the learned Advocate General and the Department of Law, Justice and Parliamentary Affairs has given their opinion on the applicability of Roshni Act to the land in question, no action is indicated on part of the Chief Secretary, from the legal stand point. This position needs to be appropriately brought before the Trial Court.
In view of the above, the Department of Law, Justice and Parliamentary Affairs may again be requested to advise on the desirability/ legality of filing the petition under Section 561-A Cr. P. C. as proposed by the Vigilance Organization."CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 12 of 23
11. Another communication bearing U.O. No. LD (ACQ) 2016/110/GAD (Vig) dated 15th of September, 2016, of the Special Secretary to the Department of Law, Justice and Parliamentary Affairs, addressed to the Commissioner/ Secretary to Government, General Administration Department, attached to the records produced by the Vigilance Organization before this Court and bears Paragraph No.36, reads as under:
"Returned. The General Administration Department is advised as follows: -
(i) The Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001 has been enforced in the State vide notification SRO 94 of 2002 dated 01.03.2002 as such, the scheme envisaged therein became operational with effect from 01.03.2002, where as the land has been transferred to the Gulmarg Development Authority in the year 2005, as such the rights of the occupants existed as on 2002, and that too cannot be denied by any subsequent transfer in 2005 to GDA.
(ii) since the State has ultimately suffered no loss as the entire process was put on hold and no ownership rights have been conferred upon the beneficiaries. It is difficult for Vigilance Organization to prove the case against the alleged accused merely on the ground of attempt was made in conferring the rights to occupants of land under Roshni Act that too on the plea that records and filing of application under the Act where forged/ tempered by the beneficiaries in connivance with the Revenue officials if the same are based on evidence, the department can proceed against them under 17 of the Roshni Act. There is no provision in the Prevention of Corruption Act, 2006 applicable to the State whereunder attempt falls within the ambit of offences under the Act. However, the said provision is available in Prevention of Corruption Act, 1988 (Central Act).
Section 3A of Central Act:
"whosoever attempt to commit an offence referred to in clause (c) or clause (d) of sub-section (1) shall be punishable with imprisonment for a term which may extend to 3 years or with time or with both".CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 13 of 23
As is clear from above, the attempt is punishable under the Central Act and same is not an offence under the State Act, as such the case of Vigilance Organization may not stand judicial scrutiny.
(iii) there is no ground for filing 561-A CrPC against the order of the trial court dated 25.06.2016, as the court has simply sought information regarding the decision taken by the Chief Secretary which is that the process of transfer of ownership rights to the beneficiaries have been kept on hold. The order dated 25.06.2016 does not constitute an abuse of process of law."
12. The opinion of the learned Advocate General is recorded at page No. 30 of the records produced by the Vigilance Organization and the operative part of it reads as under:
"Therefore, in my opinion in the instant case, (i) right of occupants of the State land at Gulmarg as existed on 01.03.2002 could not be denied or ignored by transfer of the said land at same place in favour of Gulmarg Development Authority in the year 2005 provided the purpose of utilization of said land is same as is provided in Master Plan; (ii) the land which has been transferred in favour of the Gulmarg Development Authority/ Tourism Department does not come under the provisions of Act of 2001 except what has crystallized and accrued in favour of occupants from the date of enforcement of the Act i.e. 01.03.2002 till transfer of the land in 2005; (iii) if any violation of provision of conferment of ownership of State land has been committed by violating Section 8 or any other provision of Act of 2001 by any officer/ official of the State Government intentionally and deliberately to which Act of 2001 does not apply or if the Act applies then subject to availability of prosecution evidence/ material against them to prove such violation, a sanction for launching of the prosecution in terms of Section 6 of the Prevention of Corruption Act can be granted."
13. It may also be worthwhile to submit that even the trial Court directed the State Government vide its order dated 26th of June, 2016, to solicit the opinion of the Government about the applicability of the Act over the Gulmarg area. In response thereto, the Government, through Additional Chief Secretary of the State, forwarded the opinion of the Advocate General and the Law Department CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 14 of 23 to the Inspector General Vigilance vide No. GAD (Vig)13-WP/2016 dated 16th of September, 2016. This, in law, is the opinion of the Government. Therefore, the opinion of the Officers to resolve all pending cases in its meeting dated 4th of June, 2008 under the J&K State Lands (Vesting of Ownership to Occupants) Act, 2001 cannot be criminalized especially in view of the binding opinion of the Law Department and the Advocate General and its endorsement by the Chief Secretary of the State. The subsequent ratifications are equivalent to the prior command. Even otherwise, the Prosecution case that the subject land was transferred to GDA vide Government Order No. 137-TSM of 2005 dated 13th of June, 2005 and, thus, the Act would not apply, is absolutely misplaced inasmuch as the land vested in the occupants under the Act, by virtue of said statute when enforced vide SRO 94 of 2003. It goes without saying that conflict between the Statute and executive order of the Government has to be resolved in favour of the Statute. This position of law is no more res-integra.
14. The Prosecution in the case has been initiated against the pervading and prevailing orders of this Court supra and that of the trial Court. Under these circumstances, this Court would not afford to remain a mute spectator when the matter is brought to its notice under its supervisory jurisdiction. The officers were indicted for the acts committed by them in the course of their official duties as the processing of cases had the sanction of law under the Act, in favour of the occupants of the State land at Gulmarg. Since all these cases were stuck before the authorities under the Act because of conflicting opinions between various Government departments, it was within the legitimate duties of these officers to consider these cases. Premise of this argument is that the view taken by these officers to consider these cases under the Act, has prevailed, CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 15 of 23 thus, their opinion was legitimate. The Officers have been indicted maliciously. To illustrate, the then Deputy Commissioner, Baramulla, Shri Baseer Ahmad Khan, was indicted for having participated in the meeting dated 4 th of June, 2008, when in fact the said officer has not signed these minutes as a participant. The said officer was also responsible for keeping the process of allotment on hold vide letter No. dcb/2008/607/609/Sq dated 25th of July, 2008, yet he has been indicted. It was the said Deputy Commissioner, Baramulla, who directed the CEO, Gulmarg Development Authority, vide his No. DCB/SQ/2696 dated 27th of January, 2009, to keep on hold the processing of cases under the J&K State Lands (Vesting of Ownership to Occupants) Act, 2001, popularly called "Roshni" till further orders. The fundamental charge works on the premise of the non-applicability of the J&K State Lands (Vesting of Ownership to Occupants) Act, 2001, while as the charge number one levelled against the answering respondent works on the premise that the J&K State Lands (Vesting of Ownership to Occupants) Act, 2001, is applicable. It is plenary in law that one cannot be charged for any act where doubt rules the roost on seminal facts. Unless and until this uncertainty of the fundamental facts is resolved neither of the two charges would survive and the resolution of it lies in proceedings other than criminal proceedings under question.
15. The law Department of the J&K State Government is an important Department of the State of Jammu and Kashmir. All the departments of the J&K State are required, as enjoined by the J&K Government Business Rules, to obtain the opinion from the Law Department on the issue(s) concerning the statutory rules, notifications or issuance of an order(s) or to sanction under a statutory power the issue of any rule, bye-law, notification or any order by a CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 16 of 23 subordinate authority. Not only this, all the Administrative Departments, including respondents herein, have to consult the Law Department on the construction of the Statute(s), Act(s), Regulation(s), Statutory Rule(s), and even as regards the issuance of the order(s) and the notification(s). The Administrative Departments are also required to consult the Law Department on any general legal principles arising out of any case or institution or withdrawal of any prosecution at the instance of any Administrative Department. Even in the cases of preparation of important contracts entered into by the Government, the Administrative Departments have to consult the Law Department.
16. In the present case as well, the Vigilance Organization, Kashmir, submitted the Final Investigation Report to the General Administration Department, Government of Jammu and Kashmir. The Final Investigation Report, so submitted by the Vigilance Organization, J&K, was referred to the Law Department for the legal opinion, so that further course of action was taken on the edifice of the opinion, to be given by the Law Department. The legal opinion was given by the Law Department, which was conveyed by the General Administration Department, Government of Jammu and Kashmir, to the Inspector General of Police, Vigilance Organization, J&K, Srinagar, vide letter No. GAD(Vig)12-WP/2016 dated 16th of September, 2016. What are the contents of the said communication, are germane and imperative as it deals with and sets at rest the whole controversy in hand once for all, thus, imperative to be reproduced in verbatim hereinafter:
"Kindly, refer to your letter dated 14.06.2016 regarding the subject matter. The matter has been examined in consultation with the Department of Law, Justice and Parliamentary Affairs. It has been communicated by the Department of Law, Justice an Parliamentary Affairs that "there is no requirement for filing petition under Section 561- CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 17 of 23 A Cr. P.C. against the order dated 25.06.2016 of the Hon'ble Trial Court, as the Court has simply sought information regarding the decision taken by the Chief Secretary which is that the process of transfer of ownership rights to the beneficiaries under the Roshni act has been kept on hold. The order dated 25.06.2016 does not constitute an abuse of process of law.
As regards the direction made by the Hon'ble Trial court to the Vigilance Organization to apprise the Court on the next date of hearing about the decision taken by the Government after the Chief Secretary directed the Department to put the process of vesting of ownership rights under the Roshni Act on hold till the whole matter was reviewed from the legal angle, I am directed to convey that since the pronouncement of the judgment dated 10.04.2009 of the Hon'ble High Court referred in the Hon'ble Trial Courts order, several developments have taken place and in view of the opinion given by the learned Advocate General and the Department of Law, Justice and Parliamentary Affairs (Copies enclosed) on the applicability of the Roshni Act to the lands in question, no action is indicated on the part of Chief Secretary from the legal stand point.
You are requested to apprise the Hon'ble Trial court, according to the next date of hearing."
17. Summing up, the Law Department directed the respondent to apprise the learned trial Court with the documents marked as Annexures "E" and "F" collectively, ranging from page 97 to 112 attached to the revision petition. These documents unequivocally stated that the Roshni Act is applicable to the land held by the Gulmarg Development Authority as can be seen from pages 103 & 112 attached to the revision petition and also that no case is made out as against the petitioners. No criminality can be attributed to the petitioners for having held the said Act applicable (page No. 106 attached to the revision petition) and the respondents choose to steal the same from the scrutiny of the learned Special Judge. They also placed the covering letter before the learned trial Judge as can be seen from pages 99 and 100, i.e. Annexure "F" attached to the revision petition. In the covering letter, the respondents did make a mention of these annexures, but skipped and shelved them for consideration by the CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 18 of 23 Court. They did not place these on record although they made a reference to them in Annexure F which necessitated the petitioner to file an application under Section 94 of the Criminal Procedure Code, beseeching the trial Court to summon the same. The petitioner, it is alleged, reinforced his application by placing reliance on AIR 2005 SC 359 (Paragraph No.25) as well as 2018 (2) SCC 93 (Paragraph No.09) at page 137 amongst others read with Annexure "C" & "D" referred to above.
18. This High Court has also delved over this matter in the case titled 'Narangan Kour v. State of JK & Ors.", reported in '1987 KLJ 712', and has observed as under:
"At any stage, the provisions of Section 94 of the Code of Criminal Procedure empower a court whenever it considers necessary or desirable for the purpose of any enquiry, trial or other proceedings to permit the production of a document. The expression 'whether' which is the opening word of the section implies that it can be done at any stage of the proceedings. 1974 J&K LR 622, Ref. the provisions of Section 94 Cr. P.C. are almost in pari materia with the provisions of Sec. 540 Cr. P.C. which empowers a Court at any stage of enquiry, trial or other proceedings under the Code to examine, recall or re-examine any person whose evidence appears to the Court to be essential for a just decision of the Court."
19. In the case of "Harshendra Kumar D v. Rebatilata Koley Etc.", reported in "2011 (3) SCC 351", the Apex Court of the country has held that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 19 of 23 revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defense of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defense before the trial Court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.
20. Testing the instant case on the above parameters of the law, the application under Section 94 of the Cr. P.C. could not have been rejected by the learned trial Court in the most uncavalier manner by giving a goby to the directions of the High Court passed in exercise of its inherent power vested in it by the Criminal Procedure Code and the learned trial Court had no option but to comply with its mandate, but the learned trial Judge in disobedience of the directions of the High Court requiring the prosecution to approach the Government for appropriate decision. It is apposite to notice here that the Government of Jammu and Kashmir is otherwise also bound to take a decision because it is a party to the decision passed the impugned order. The learned Judge, by rejecting the application of the petitioner and by posting the matter for arguments on charge, has virtually rewrote his own order and has passed the order in derogation of the directions of the High Court and an earlier order dated CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 20 of 23 25th of June, 2016, passed by the same Court which depicts a patent abuse of power and transgression of limits, as a consequence of which, serious prejudice and irreparable loss has been caused to the petitioner and the proforma respondents. The judgment of the High Court has attained finality as it has not been challenged. Same is the case with the order dated 25th of June, 2016, of the Special Judge which has not been challenged and that too has attained finality.
21. Looking at the instant case from yet another angle, it is not a case where the respondent had not relied upon these documents, but the respondent, by playing a mischief in concealing and deliberately withholding them so that the Court is incapacitated to look into their contents, placed the covering letter of the Law Department only before the Court in which a mention has been made of Annexures "E" to "F", but these annexures have not been attached to the file. It was the duty of the trial Court to find out whether the report laid in terms of Section 173(2) of the Cr. P. C. is in order when the reference was placed to Annexures "E" & "F" in the covering letter attached to the file. Annexures "E" & "F" were, thus, a part of the record and the respondents had to be directed to produce those documents before the Court.
22. In view of the preceding analysis, the revision petition is allowed, as a corollary to which, the order dated 31st of March, 2018, passed by the Court of learned 1st Additional District Judge, Special Judge, Anti-Corruption for the Districts of Baramulla, Kupwara and Bandipora, is quashed. The record produced by the Vigilance Organization before this Court alongwith the trial Court record shall be remitted to the learned trial Court and the learned trial Court shall hear arguments on charge and discharge, taking into consideration CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 21 of 23 the records produced before this Court by the Vigilance Organization, the report in the final form and accord due consideration to the written submissions and the oral arguments that may be filed and advanced by the learned counsel for the respondents as also the state before passing any order. This direction assumes significance in the context of the argument raised by Mr. Azhar ul Amin, learned counsel representing the respondent No.9 who has stated that he may be permitted to file the written submissions also before the trial Court. There appears to be no bar in doing so.
OWP No. 563/2018; IA No.01/2018:
Appearance as above.
23. In this petition, filed under Section 104 of the Constitution of Jammu & Kashmir, the petitioner has sought the indulgence of this Court in granting him the following relief(s):
"In the premise thereof, it is humbly prayed that this Hon'ble High Court by exercising the supervisory jurisdiction u/s 104 of the Constitution of J&K, may be pleased to;
a) Direct the Ld. Spl. Judge, Anti-Corruption, Baramulla, to first pronounce any order on the application u/s section 94 Cr.P.C., filed by the petitioner, before the arguments on charge are commended,
b) Pass any other order deemed necessary in the interest of justice."
24. The relief, as referred to hereinabove, has become infructuous on the face of the order dated 31st of March, 2018, passed in the application which is impugned in the criminal revision petition, i.e. CRR No. 17/2018. It being so, this writ petition, alongwith connected IA(s), shall stand disposed of for having been rendered infructuous.
CRR No. 17/2018 OWP No. 563/2018 CRTA No. 09/2018 Page 22 of 23CRTA 09/2018; IA No. 01/2018:
Appearance as above.
25. In this application, the applicant/ petitioner seeks transfer of the case titled 'State through VOK v. Mehboob Iqbal & Ors.', pending before the Court of learned Special Judge, Anti-Corruption, Baramulla, to any other Court of competent jurisdiction.
26. The applicant/petitioner has to spell out sufficient reasons in the application that justify the indulgence of the Court in directing the transfer of the case from one Court to the other. The Court cannot interfere unless the reasons detailed in the petition are such that the Court comes to the conclusion that the trial of the case in the Court from where the transfer is sought will work injustice to the other side. The transfer of the case cannot be sought on mere presumptions, speculations, surmises and conjectures. No justified ground has been agitated by the petitioner to carve out a case in his favour. The transfer of the case cannot be directed on the allegations that are weak and fragile in nature and have no substance in them.
27. In view of the above, the instant transfer application sans merit. It entails dismissal and is, accordingly, dismissed, alongwith all connected IA(s). Interim directions, if any, in force as on date, shall stand vacated.
28. Registry to send down the record(s) alongwith a copy of this order. It shall also place a copy of this order on each file.
(M. K. Hanjura) Judge SRINAGAR October 15th, 2018 "TAHIR"
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