Jammu & Kashmir High Court
Mohammad Bashir vs Ut Of J&K on 15 May, 2025
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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
JAMMU
OWP No. 860/2010,
CM No. 9509/2019,
CM No. 3996/2024
IA No. 01/2018
Pronounced on:. 15.05.2025
Mohammad Bashir
s/o Kh. Muhammad Hussain
r/o village Madhana, Teshil Haveli
District Poonch a/p Jammu.
..... Appellant/petitioner(s)
Through: -Mr. K. Nirmal Kotwal, Advocate
Vs
UT of J&K, through Senior Superintendent of Police,
Vigilance Organisation (now ACB Jammu)
, ...... Respondent(s)
Through: -Ms. Monika Kohli, Sr. AAG
CORAM:
HON'BLE MR JUSTICE MOHD YOUSUF WANI, JUDGE
JUDGMENT
1. Through the medium of the instant petition, filed under Article 226 of the Constitution of India, the petitioner/accused has sought the quashment of the FIR No. 15/2010, registered by Police Station Vigilance Organization (now ACB), Jammu, against him, on the allegation of the commission of offence punishable under Section 5 (2) read with Section 5(1)(e) of the J&K Prevention of Corruption Act, Svt. 2006 (now repealed and replaced by Prevention of Corruption Act, 1988 Central and hereinafter referred to as PC Act), on the grounds inter alia that the registration of the same is an abuse of process and statutory powers by the respondent. That before the registration of the case FIR in question, the Police Station Vigilance Organization, Jammu (hereinafter referred to "VOJ" for short), had already registered a case FIR against him under No. 2 67/1998 dated 22.09.1998, covering almost the same allegations. That the investigation in the said earlier case FIR of 1998, continued till 2003, when the Investigating Agency could not substantiate the allegations against him and consequently the investigation in the said case FIR was closed as "Not Proved". That the allegations in both case FIR numbers are substantially identical and, as such, the respondent organization was not legally competent to investigate the same allegations twice. That the respondent organization has nowhere stated in the final report/challan, culminating from the impugned case FIR No. 15/2010 of VOJ and pending before the learned Special Court, that the properties mentioned therein have been created after 2003, when the investigation in the earlier FIR was concluded as "Not Proved". That the investigation conducted in the earlier case FIR has a direct bearing on the second case arising from the investigation in impugned Case FIR No. 15/2010. That the allegations against him regarding his assets being disproportionate to his known sources of income, stood already investigated and, as such, no further investigation was warranted under law. That it is not the case of the respondent organization that earlier FIR NO. 67/1998, was further investigated but the impugned case happens to be a fresh independent case FIR bearing No. 15/2010. That the impugned case FIR is outcome of a malafide exercise of the power by the respondent, which has jeopardized the liberty as well as career of the petitioner/accused. That the petitioner/accused has no other remedy available to him under law and that he has not earlier filed a similar petition before this Court or before the Hon'ble Supreme Court. 3
2. It is pleaded by the petitioner in the petition that, he is alleged to have amassed huge movable and immovable property disproportionate to his known source of income, including:-
a. A house at Madhana, Poonch, costing Rs. 15.00 lacs. b. A house near Police Station, Janipur on 2.5 Kanals of land, costing Rs. 40.00 lacs.
c. A house at Sheikhpora on Srinagar Airport Road, costing Rs. 30.00 lacs.
d. Regal Banquet Hall at Gho-Manhasan Road, Jammu, with four shops, costing Rs. 50.00 lacs.
3. It is further mentioned in the petition, that in addition to the aforesaid immoveable property, the petitioner/accused is alleged of having luxurious Cars, ornaments, expensive household articles, electronic gadgets and number of plots/buildings in the name of his relatives/friends. It is further mentioned in the petition that subsequent to the registration of the impugned case FIR, the respondent organization sealed a residential house at Friends Enclave, Humhama, Tehsil and District, Budgam. It is also mentioned in the main petition that Account No. 3495 lying with J&K Bank, Branch Janipur, Jammu, was also frozen by the respondent. It is further contended in the petition that the house which is situated at Sheikhpora, Humhama Airport Road, was claimed by some Kamal Singh S/o Ameer Nath resident of Model Town, Channi Himmat, Tehsil and District, Jammu, who filed an application, accordingly, before the learned Special Court for release of the sealed house and the learned Special Court vide order dated 05.06.2010, directed un-sealing of the said residential house. That the learned trial Court also allowed the wife of the petitioner/accused to operate his Bank Account No. 3495 vide order dated 4 05.06.2010. It is further pleaded in the petition that the learned Special Court also allowed various articles like Mobile Phones, Laptops, Guns to be released in favour of the petitioner/accused vide the aforesaid order dated 05.06.2010. It is further pleaded in the petition that the investigation in the earlier case FIR No. 67/1998, involved the properties viz:-
a. House at Sarwal b. House at Roop Nagar, Jammu c. House in village Madhana d. 55 Kanals of land in village, Madhana e. Four shops in village Madhana, Poonch.
4. It is further pleaded in the petition that, in the earlier case FIR No. 67/1998; all such properties both moveable and immoveable as are mentioned in the impugned FIR No. 15/2010 were subject matter of investigation. That alleged Benami transactions were also investigated in the earlier case FIR. That the law only permits further investigation and that too under the orders of the Court and not otherwise.
5. The Respondent organization filed its reply to the petition in hand and resisted the same on the grounds that petitioner has not approached the Court with clean hands, as he has failed to show any ground muchless a sufficient ground to invoke the jurisdiction of this Court. That the investigation in the case FIR is at its threshold stage and the petitioner/accused is trying to scuttle away from the investigation process.
That no legal or constitutional right of the petitioner has been violated with the registration of the case FIR against him, as during the verification conducted into the allegation of possession of disproportionate assets acquired by the him, tangible and positive material has come on record, 5 disclosing the commission of offence punishable under Section 5(2) read with 5 (1) (e) of PC Act, leading to the registration of the case FIR sought to be quashed. That the investigation so far conducted has discovered inter alia the immoveable assets amassed by the petitioner viz:-
a. A house at Friends Enclave Humhama, Srinagar; b. A house at Madhana, Poonch;
c. Residential house at 101-Shiva Enclave Roop Nagar near P/S Janipur, Jammu;
d. Regal Banquet Hall at Gho-Manhasan Road, Jammu with four shops.
That the said assets and properties were found acquired by the petitioner in the name of his close friend, associate and confident and other relative to conceal the ill-gotten money amassed through corrupt practices.
That the investigation in the case FIR No. 15/2010, being carried by the respondent organization is not the abuse of process of law or of statutory authority by the respondent organization. That only two immoveable properties viz: (a) a single storeyed house at Sarwal, Jammu and (b) a house under construction at Roop Nagar, Jammu, were the subject matter of the earlier FIR No. 67/1998.
That the properties mentioned at serial No. III, IV and V of Para 5
(a) of the petition viz (i) Kacha/Pacca house in village Madhana Tehsil Poonch (valuing Rs. 50,000); 55 Kanals of land in village Madhana, Havelli Poonch (valuing Rs. 1.00 lac and four shops in village Madhana, Poonch (valuing Rs. 50,000), which were reflected by the petitioner/accused in the property statement as ancestral properties and as such were not attributed to the petitioner/accused. Besides, the properties mentioned at serial No. 1, and 2 above, i.e., A single storey house at 6 Sarwal and a house under construction at Roop Nagar near Police Check Post, Janipur were the houses of Sh. G. A. Peer and Sandeep Verma respectively, in which the petitioner/accused was found residing as tenant w.e.f. 1989 till registration of case FIR No. 67/1998 P/S VOJ. The said assets were not attributed to the petitioner/accused and the investigation of case FIR No. 67/1998 was concluded as "not proved".
That the allegations in FIR No. 67/1998 and FIR No. 15/2010, both of Police Station, VOJ are not identical as alleged, but entirely distinct. That FIR No. 67/1998, was registered in Police Station, VOJ, against the petitioner on 22.09.1998. The properties mentioned at Para 5 (a) and the check period from the year 1984 till 1998, formed the subject matter of the investigation of the case. Whereas, FIR No. 15/2010 was subsequently registered in P/S VOJ against the petitioner/accused on 07.05.2010. The properties viz House at Madhana, Poonch and House at Roop Nagar, near P/S Janipur, inter alia do form subject matter of the investigation of FIR No. 15/2010, but a substantial change has taken place in these assets. The ancestral house at Madhana, Poonch most of which was Kacha has now become a big double storied Pacca house comprising of nine rooms, one kitchen, one lobby, five bathrooms, and one Veranda, the construction of which took place in the year 2009-2010. The old structure has also been renovated. Whereas, the house situated at Roop Nagar, Jammu near P/S, Janipur in which the petitioner/accused was found residing as tenant has now been purchased by the petitioner/accused and a substantial renovation/additions/deletions have been made by the accused in the structure of the said building after its purchase. That the whole service period of petitioner/accused till registration of case FIR No. 15/2010 has 7 been taken into account to investigate his assets. That there has been substantial material changes in the assets viz (1) a house at Madhana Poonch, and (2) house at Roop Nagar, near P/S Janipur, Jammu which have been made by the petitioner/accused, soon after the conclusion of investigation of first FIR No. 67/1998. That the new assets namely (1) house at friends Enclave Humhama, Srinagar (2) house at 101-A, Shiva Enclave near P/S Janipur, Jammu (3) Regal Banquet Hall at Gho- Manhason Road, Jammu with four shops and other moveable assets including 300 Gms of Gold, Cars, Motor Cycles, Bank balances worth Rs. 30.00 lacs, LICs, GPF, one Revolver, one double barrel gun, one single barrel gun, two laptops, one computer, 6 televisions, LCDs, Invertors, A.Cs, Gysers, Refrigerators, costly mobile phones, Expenditure on electricity/mobile bills etc., which were not taken into account in the investigation of FIR No. 67/1998 were subsequently discovered and attributed to the petitioner/accused in FIR No. 15/2010 P/S VOJ. That the investigation of FIR No. 15/2010, revealed that the petitioner/accused had resorted to benami transactions to acquire the above-mentioned immoveable assets in the name of his close friends/associates/confident Sh. Kamal Singh and other relations to conceal the illicit/ill-gotten money amassed through corrupt practices. Further the petitioner/accused has incurred huge expenditure in sending his son namely Firdous Choudhary abroad viz Buckingham (U.K), which was not taken into account in the earlier FIR No. 67/1998 P/S VOJ. The education of wards of the petitioner/accused in Dalhousie Public School, Dental college, Sunder Nagar Himachal Pradesh and other professional colleges as well as visit of the petitioner/accused outside the country and sale deeds of land 8 numbering about 300 has become the part of investigation of case FIR No. 15/2010, which was not investigated in previous FIR. That above factors impelled the respondent organization to take cognizance of the matter pertaining to acquisitionof the disproportionate assets by petitioner/accused and register new FIR No. 15/2010 P/S VOJ to investigate into his such assets acquired by him by resorting to omission and commission which constitutes offence of criminal misconduct punishable under Section 5 (2) read with Section 5(1) (e) P.C Act.
That, there is no provision in the code or the constitution which prohibits the filing of new or second FIR for the reason that earlier period was included in the second FIR and some assets which were taken into account in first FIR form the subject matter of investigation of second FIR. The second FIR No. 15/2010 is thus not bad in law. That, there is no legal impediment to have a fresh first information report to the entire service period of a Govt. Servant to investigate his assets. That, it is however, submitted that the earlier investigation can also be taken into account at the stage of conclusion of the investigation of new case That, the allegations forming the subject matter of FIR No. 15/2010, if taken at its face, value do constitute prima facie a cognizable case under Section 5(2) PC. Act. That there is no legal bar under the provisions of code for investigation or continuance of proceedings carried out by answering respondent pursuant to registration of FIR No. 15/2010. That, the present proceedings are not manifestly malafide, instituted with ulterior motive, as alleged.
6. Perusal of the record reveals that the respondent organization during the proceedings of the instant petition, filed status reports, to which the petitioner/accused also filed his response.
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7. This Court has heard Mr. K. Nirmal Kotwal, learned counsel for the petitioner/accused and Mrs. Monika Kohli, learned Sr. AAG for the respondent organization.
8. Learned counsel for the petitioner/accused during his arguments inter-alia contended that the registration of impugned FIR by the respondent organization is bad in law being outcome of misuse and abuse of provisions of law as well as of its authority and more especially is violative of the fundamental rights of the petitioner/accused, guaranteed under Articles 20(2) and 21 of the Constitution of India and Section 300 of the Code corresponding to Section 337 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS fort short). He contended that the impugned FIR No. 15/2010 of Police Station, VOJ was registered on the allegation of the accumulation of the assets in the shape of moveable and immoveable properties by the petitioner/accused, disproportionate to his known sources of income. That prior to the registration of the impugned FIR, the respondent organization had registered FIR No. 67/1998 against the petitioner/accused on the same allegation of amassing disproportionate assets and the investigation in the said case was started on 22.09.1998 and remained opened till the year 2003. That the investigation in the said earlier case was closed by the respondent organization as "not proved", whereafter a final report in terms of Section 173 of the Code, corresponding to 193 of the BNSS came to be filed before the Ld. Special Court, i.e. the Court of Special Judge, Anti-Corruption, Jammu and the finding of the respondent organization in closing the case as "not proved" 10
was agreed by the Court vide order dated 06.04.2010, which has the implication of acquittal of the petitioner/accused in the said earlier case.
9. It was further contended by learned counsel for the petitioner/accused that the properties which were subject matter of assessment in the first FIR were also repeated in the impugned case FIR. That the alleged benami transactions also came to be investigated by the respondent organization. Regarding the properties which were not figuring in the first FIR, it is not the case of the respondent organization that the said assets were acquired by the petitioner/accused subsequent to the year 2003. He contended that registration of the Subsequent impugned FIR is the outcome of a malafide exercise, which has thrown the petitioner/accused unnecessarily to litigation, thereby violating his fundamental right guaranteed under Article 21 of the Constitution. Learned counsel further contended that the fresh investigation undertaken by the respondent organization in the year 2010, is not either in the form of further investigation of the earlier case FIR No. 67/1998, or by way of a counter case.
10. Learned counsel for the petitioner/accused submitted that in the attending facts and circumstances of the case, the Court is required to address the following points:-
I. Whether a writ petition under Article 226 of the Constitution of India seeking quashment of an FIR is maintainable?
II. Whether two FIRs can be registered and investigated in respect of the same incident particularly when the earlier one stands closed as,"not proved" and the closure report having been accepted by the Competent Court?11
III. Whether on the presentation of earlier closure report to the learned Special Court, the police could have sought, liberty for further investigation in the matter, if needed?
IV. Whether failure in seeking permission of the Court dealing with the earlier closure report, to investigate further in the FIR in question, is fatal and what would be fall out of such failure?
V. Whether respondent was required to conduct a preliminary investigation before registration of the impugned FIR?
VI. Whether even after presentation of charge sheet the FIR and the proceedings can be quashed by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution or Section 482 Cr.PC?
11. While contending that a writ petition under the provisions of Article 226 of the Constitution of India is maintainable for quashment of FIR, learned counsel for the petitioner/accused submitted that it has been authoritatively held by the Hon'ble Supreme Court of India in case titled as State of Haryana & Ors. vs. Choudhary Bhajan Lal & Ors., reported in 1992 SCC (Cri) 426 that "though the Cr PC gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, yet in appropriate case,s an aggrieved person can always seek a remedy by invoking the powers of High Court under Article 226 of the Constitution of India, and if the High Court is convinced that the power of investigation has been malafidely exercised by a police officer, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers."
12. Learned counsel for the petitioner/accused submitted that a similar proposition of law has again been laid down by the Hon'ble Apex Court in 12 case titled Sardar Ravi Inder Singh &Ors. Vs. State of Jharkhand &Ors., reported in 2024 INSC 472.
13. Learned counsel in support of his contention to the effect that the impugned case FIR No. 15/2010, registered with Respondent covering the allegations that were the subject matter of the earlier case FIR No. 67/1998 of P/S VOJ, is not sustainable under law, placed reliance on an authoritative Judgment of the Hon'ble Apex Court cited as T. T. Antony vs. State of Kerala &Ors., and submitted that it has been held in the said case that, Police is not empowered to subject citizens to fresh investigation in respect of same incidents. That a fresh investigation based on the second or successive FIRs, not being a counter case, initiated in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR, either investigation is underway or final report under Section 173 (2) has been forwarded to the magistrate, may be a fit case for exercise of power under Section 482 Cr PC or under Article 226/227 of the Constitution.
14. Learned counsel for the petitioner/accused submitted that the case of petitioner/accused is squarely covered by the afore-referred Judgment of the Hon'ble Apex Court passed in T. T. Antony's case, as the earlier FIR No. 67/1998 was registered against the petitioner/accused on the allegations of accumulation of assets by him disproportionate to his known sources of income and the investigation in the case was closed by the respondent organization as "not proved". He contended that the competent Court, i.e., Special Judge, Anti-Corruption, Jammu upon going through the 13 final closure report submitted by the respondent organization agreed with the finding of the Respondent organization in closing the case. Learned counsel further contended that the respondent organization has not proceeded by way of further investigation as no such right was sought by it, while presenting final closure report in the earlier FIR. It was further contended by learned counsel that this Court in case titled Bopinder Singh Dua vs. UT of J&K, CRM(M) No. 90/2020 decided on 10.03.2023, while placing reliance on the Hon'ble Apex Court Judgment titled Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra &Ors., reported in 2021 SCC online SC 315, observed that "the law is no more res-integra that registration of successive FIR in connection with same or connected cognizable offence has been held to be violative of Article 21 of the Constitution. Learned counsel further contended that respondent organization has exercised the power for registration of impugned FIR with malafide intention just to see that the petitioner is roped in successive FIRs. That it was incumbent upon the respondent organization to at least hold a preliminary inquiry for ascertaining the truth of the allegations. In support of his contention learned counsel placed reliance on an authoritative Judgment of the Hon'ble Apex Court cited as "Charan Singh Vs. State of Maharashtra reported in 2021 (v) SCC 469". Learned counsel further submitted that this Court is fully competent to quash the impugned FIR along with charge report, and cannot be a silent spectator. Learned counsel in support of his contention placed reliance on the authoritative Judgment reported in 2018(2) Law Herald (SC) 372 and 2018 (1) Law Herald (P&H) 715. He submitted that the attribution of a house located at Sheikhpora on Srinagar Airport Road to the 14 petitioner/accused and the consequent allegation on the basis of such attribution of accumulation of disproportionate assets was found baseless even during the investigation of proceedings of the case as the said house after being sealed by the respondent organization came to be de-sealed by the Special Court vide order dated 05.06.2010 passed in File No. 14/Misc upon holding an enquiry to that effect and directed to be handed over to the owner of the same namely Kamal Singh S/o Amar Nath R/o Model Town Channi Himmat, Jammu. Further submitted that the said order was upheld by the Hon'ble High Court vide order dated 10.03.2023, passed in CRM(M) No. 524/2021. That said release order was also upheld by the Hon'ble Supreme Court in SLP (Cri) diary No. 48657/2023 titled UT of J&K vs. Kamal Singh, by dismissing the SLP on 10.07.2024, filed in relation to the order dated 10.03.2023 of this Court.
15. The learned counsel for the petitioner further submitted that besides, the afore pointed legal flaws going to the root of the case, the contents of the impugned FIR even if taken on their face value, do not constitute an offence punishable under section 5(2) of PC Act.
The learned counsel invited the attention of the court towards the definition of the criminal Misconduct given in section 5(1) (e) of the PC Act. He said that no doubt the public servant has to satisfactorily account for the source of such property and to his known source of income and if the explanation offered by the accused is plausible satisfactory explanation the offence would not be attracted.
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He contended that this court in case titled Bopinder Singh Dua vs. UT of J&K CRM (M) No. 90/2020 decided on 10.10.2023, under similar circumstances quashed the FIR and inter alia held in the case:-
"The law is no more res integra that registration of successive FIR in connection with same or connected cognizable offence is violative of Article 21 of the Constitution."
16. Per contra, Learned Senior Additional Advocate General, Mrs. Monika Kohli, submitted that the writ petition filed by the accused under the provisions of Article 226 of the Constitution of India is not at all maintainable and also sustainable in the facts and circumstances of the case. She contended that the case FIR No. 15/2010, registered with Police Station, VOJ, came to be registered on 07.05.2010, when a verification conducted into the allegation of acquisition of assets disproportionate to the known sources of income of petitioner/Accused, revealed that the petitioner/accused did raise assets both moveable and immoveable which are disproportionate to his known sources of income. That during the investigation in the case FIR in question, facts pertaining to various moveable and immoveable assets attributed to the petitioner/accused have been ascertained and the investigation discovered inter alia the immoveable assets of the petitioner viz.: -
a. A house at Friends Enclave Humhama, Srinagar; b. A house at Madhana, Poonch;
c. Residential house at 101-Shiva Enclave near P/S Janipur, Jammu;
d. Regal Banquet Hall at Gho-Manhasan Road, Jammu with four shops.
17. Learned Senior AAG, further contended that the aforesaid immoveable assets were found to have been acquired by the 16 petitioner/accused in the name of his close friend/associate/confident and other relations, so as to conceal the ill-gotten money amassed through corrupt practices. She, further contended that the properties and assets covered in the earlier case FIR No. 67/1998 were different and distinct from the properties, which came under assessment/verification in the impugned FIR. She contended that a single storied house at Sarwal, Jammu and a house under construction at Roop Nagar, Jammu were the assets that constituted subject matter of investigation/verification in case FIR No. 67/1998. That the aforementioned houses, which were subject matter of the earlier case FIR cameto be ascertained as the houses of one Shri G. A. Peer and other is Shri Sandeep Verma, respectively, in which the petitioner/accused was found residing as a "tenant" w.e.f. 1989 till registration of said earlier case FIR. That besides one Kacha/Pacca house situated in village Madhana Tehsil Poonch valuing Rs. 50,000/- and 55 Kanals of land in the said village Madhana Haveli, Poonch valuing 1.00 lac with four shops in the same village valuing Rs. 50,000/- were not attributed to the petitioner/accused as disproportionate because same was reflected by him in his property statements. That on the basis of the aforesaid facts the earlier case FIR No. 67/1998 registered with respondent organization was closed as "not proved". Learned counsel submitted that although the properties viz at house at Madhana, Poonch and house at Roop Nagar near P/S Janipur were also covered under FIR No. 67/1998, yet subsequent to the check period of the said earlier FIR, substantial changes in the said properties took place, which led to the assessment of the same during the investigation of the impugned FIR. She contended that the ancestral house of the petitioner at Madhana, Poonch most of which was 'Kacha' has now 17 become a big double storeyed Pacca house, comprising of nine rooms, one kitchen, one lobby, five bathrooms, and one Veranda and the renovation of which took place in the year 2009 and 2010. That likewise the house situated at Roop Nagar, Jammu near P/S Janipur, in which the petitioner/accused was found earlier residing as a tenant has now been purchased by him with substantial renovation/addition/alteration.
18. Learned Sr. AAG, further contended that the new assets viz (1)A house at Friends Enclave Humhama, Srinagar (2) Residential house at 101-Shiva Enclave near P/S Janipur, Jammu and (3) Regal Banquet Hall at Gho-Manhasan Road, Jammu with four shops and other moveable and immoveable assets, including 300 gms of Gold, Cars, Motor Cycles, Bank balances worth Rs. 30.00 lacs, LICs, GPF, one Revolver, one double barrel gun, one single barrel gun, two laptops, one computer, 6 televisions, LCDs, Invertors, A.Cs, Geysers, Refrigerators, costly mobile phones, Expenditure on electricity/mobile bills etc., which were not taken into account during investigation of case FIR No. 67/1998 were subsequently discovered and attributed to the petitioner/accused in the impugned FIR.
Learned Sr. AAG, further contended that the investigation in case FIR No. 15/2010, revealed that the petitioner/accused had resorted to benami transactions to acquire the aforesaid immoveable assets in the name of his close friends/associates, including Sh. Kamal Singh and other relations to conceal the illicit/ill-gotten money amassed by him through corrupt practices. She argued that the expenditure incurred by the petitioner/accused in sending his son namely Firdous Choudhary abroad viz Buckingham (U.K), and on the education of his other wards at 18 Dalhousie Public School, Dental college, and other professional colleges was not investigated in earlier case FIR and thus the said expenditure incurred by the petitioner/accused was attributed to him during investigation of the impugned case FIR.
19. Learned Sr. AAG, vehemently contended that there is no provision in the Code of Criminal Procedure or in the Constitution, which prohibits the filing of a new or second FIR for the reason that earlier period was included in the second FIR and also some assets which were taken into account in first FIR, form the subject matter of investigation of second FIR. She contended that the allegations forming the subject matter of the case FIR No. 15/2010 if taken at its face value do constitute prima facie cognizable case punishable under Section 5(2) read with Section 5(1) (e) of PC Act. Learned counsel further contended that the check period of the case FIR No. 15/2010 is from January, 1999 to 07.05.2010, during which period the accused was found to have acquired assets moveable and immoveable worth Rs. 1,53,52,319/-. She further contended that the accused also acquired benami assets under conspiracy with one Sh. Kamal Singh, as the house constructed on land measuring 1.6 Kanals at Friends Enclave, Humhama Airport Road, Srinagar, valuing Rs. 39,17,508/- was purchased in the name of said Kamal Singh, which house was attached by the designated Authority.
20. Learned Sr. AAG, pleaded that an amount of Rs. 1,35,11,247/-, was found disproportionate to his known sources of income and that of his spouse, as Rs. 65,64,237.56, during the check period. Learned Sr. AAG, continued to argue that Hamida Begum wife of petitioner/accused also 19 aided the petitioner in acquiring the disproportionate assets, for which she also needs to be prosecuted as an abettor/conspirator along with close friend/associate of the petitioner, Sh. Kamal Singh S/o Amar Nath (benamidaar).
21. Learned Sr. AAG, in support of her contentions placed reliance on the judgment of the Hon'ble Apex Court cited as "State of Gujarat Vs. Dilipsinh Kishorsinh Rao", "Criminal Appeal No. 2504/2023", decided on October 9, 2023 in which the High Court of Gujarat on a revision petition, set aside the order of framing charge against the respondent under Prevention of Corruption Act for his alleged possession of assets disproportionate to his known income, already passed by trial court, but the Hon'ble Supreme Court on an appeal preferred by the State set aside the order of the High Court dated 11.01.2018 passed in criminal revision and maintained the order of the trial court in framing the charges against the respondent/accused, observing that it is a settled principle of law that at the stage of considering an application for discharge, the Court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate such material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary for the offence alleged. The learned Senior AAG submitted that in the referred case, the respondent/accused had alleged that Investigating Officer had failed to consider the written statement dated 13.08.2014 as also the details of the purchase of movable and immovable properties furnished to the department on every occasion of his investment. She submitted that it was 20 also contended by the respondent/accused in the case that the sanction granted by his department for purchase of the property by him has also not been taken into account by the Investigating Officer. That errors in calculation of disproportionate assets and the non-application of mind by the Sanctioning Authority were also alleged in the referred case.
22. Learned Sr. AAG in support of her contentions, also placed reliance on the judgment of the Hon'ble Supreme Court cited as "M Krishna (appellant) Vs. State of Karnataka (respondent) 1999 CRI(LJ) 2583" and submitted that it has been authoritatively laid down by the Hon'ble Apex Court that there is no provision in the Code of Criminal Procedure (CrPC), which debars the filing of an FIR and investigating into the alleged offences merely because for an earlier period, there was an FIR, which was duly investigated into and culminated in "B-form" which was accepted by the competent court. Learned Sr. AAG submitted that the facts of the referred case squarely apply to the present case, as in the said referred case, earlier FIR relating to same period was duly investigated into and culminated in "B-form" and accepted by competent court.
23. The learned Sr. AAG while further referring to a judgment of the Karnataka High Court submitted that preliminary enquiry is not mandatory before registering a First Information Report on charges of possessing disproportionate assets to the known sources of income by a Government Servant, if the source report makes out a prima-facie case against the accused.
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24. Learned Sr. AAG prayed for the dismissal of the petition and passing of a direction regarding conductance of trial in the criminal case having culminated from the impugned FIR and pending before the learned Special Judge at Jammu, so that the ends of justice are met. She submitted that the wife of the petitioner as well as the petitioner's friend, namely, Kamal Singh be also directed to be charged alongside the petitioner/accused for the offences of conspiracy and abetment.
25. I have perused the record of the instant petition filed under the provisions of Article 226 of the Constitution. Scanned copy of the final police report/charge sheet has also been gone through.
This Court has made an in-depth consideration of the rival arguments advanced on both the sides.
26. Keeping in view the aforementioned perusal and consideration, this Court in the peculiar facts and circumstances of the case, is of the opinion that registration of the impugned case FIR bearing No. 15 of 2010 with the Police Station Vigilance Organisation (now Anti-Corruption Bureau), Jammu, being a successive one is not permissible and valid under law.
27. The respondent organisation/Bureau had prior to the registration of the impugned FIR, registered FIR No. 67 of 1998 against the petitioner accused under Section 5 (2) read with Section 5 (1) (e) of the PC Act on the allegation of his possession of assets disproportionate to his known sources of income. The said case FIR could not be established by the respondent organisation during investigation and accordingly was closed as 22 "Not Admitted". The final closure report of the respondent organisation in respect of the said earlier case FIR No. 67 of 1998 came to be presented before the learned Special Court and the finding of the Investigating Agency in closing the said earlier case as 'Not Admitted' was agreed by the learned Special Court vide its order dated 06.04.2004 passed on the said final report.
The impugned FIR has been registered by the respondent organisation on 07.05.2010 purportedly, pursuant to an enquiry/verification that revealed that petitioner/accused has amassed huge movable and immovable property disproportionate to his known sources of income including;
(a). A house at Madana Poonch valuing 15 lacs;
(b). A house near Police Station Janipur on 2.5 Kanals of land valuing 40 lacs;
(c). A house at Sheikhpora on Srinagar Airport Road valuing 30 lacs; and
(d) Regal Banquet Hall at Gho Mahnhasan Road Jammu with Four Shops valuing 15 lacs.
The impugned FIR further revealed that in addition to the aforesaid property, the petitioner/accused is having luxury cars, ornaments, expensive household articles, electronic gadgets etc. In the earlier FIR bearing No. 67/1998, a reference to, holding of a preliminary enquiry was made.
28. The impugned FIR although refers to the holding of a verification into the allegations of acquisition of assets disproportionate to the known sources of his income by the petitioner/accused, yet same appears to be a secret information without reference to any complainant. A preliminary 23 enquiry which needs to be necessarily held in connection with the allegations of holding disproportionate assets by a public servant with the involvement and association of the accused therein appears to have not been conducted in the case in hand prior to the registration of the impugned FIR. The holding of such a preliminary enquiry with the association of the petitioner/accused was very much necessary in the backdrop of the registration of an earlier case FIR bearing No. 67 of 1998 against him, which was not established by the respondent organisation during investigation of the same and in which the competent Special Court agreed with the finding of the Investigating Officer in closing the case as 'not proved'. The Hon'ble Supreme Court in "Charan Singh vs. State of Maharashtra and Others (2021) Cri LJ 2349"decided on 24.03.2021, while making reference to its earlier judgments "Lalita Kumari vs. Govt of Utter Pradesh (2014) 2 SCC 1" and "P Sirajudin vs. State of Madras (1970) 1 SCC 595" held that enquiry at the pre-FIR stage is held to be not only permissible but desirable more particularly in cases where allegations are of misconduct, by corrupt practice, acquiring assets/properties disproportionate to the known sources of income by a public servant.
It is profitable to reproduce the Paras 9 and 9.1 of the judgment of the Hon'ble Apex Court for the sake of convenience: -
"9. In the context of offences relating to corruption, in paragraph 117 in the case of Lalita Kumari (supra), this Court also took note of the decision of this Court in the case of P. Sirajuddin v. State of Madras (1970) 1 SCC 595 in which case this Court expressed the need for a preliminary enquiry before proceeding against public servants.While expressing the need for a preliminary enquiry before proceeding against public servants who are charged with the allegation of corruption, it is observed in the case of P. Sirajuddin (supra) that "before a public servant, whatever be his status, is publicly charged with acts of dishonesty 24 which amount to serious misdemeanour or misconduct of indulging into corrupt practice and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person who is occupying the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to in general. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department". It is further observed that "when such an enquiry is to be held for the purpose of finding out whether criminal proceedings are to be initiated and the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the person against whom the allegations are made and documents bearing on the same to find out whether there is a prima facie evidence of guilt of the officer, thereafter, the ordinary law of the land must take its course and further enquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report".
"9.1 Thus, an enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged. However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made."
29. As hereinbefore mentioned, an open pre-registration enquiry as against a secret/discrete enquiry was desirable in the facts and 25 circumstances of the case, as the desirability of same is based on the principles of natural justice.
The holding of pre-registration enquiry in the case with the involvement/association of the petitioner/accused was also desired having regard to the fact that some properties as mentioned in the impugned FIR were also the subject matter of investigation in the earlier case FIR No. 67 of 1998. It is admitted on the part of the respondent organisation that the propertiesviz.(1). House at MadanaPoonch; and (2) House at Roop Nagar near Police Station Janipur, were also the subject matter of the earlier case FIR No. 67 of 1998. However, it is needful to mention that the respondent'sorganisation has pleaded that such properties were covered under the impugned FIR on the basis of the enhanced cost of the same pursuant to their reconstruction/renovation and purchase by the petitioner.
It is the stand of the petitioner/accused that some properties which as per the impugned FIR are alleged by the respondent/bureau to be disproportionate in terms of his known sources of income were already the subject matter of the earlier case FIR No. 67/1998 which was closed by the respondent organisation as 'Not Proved' and with which finding of the respondent organisation, the learned Special Court also agreed while disposing of the final report presented under Section 173 of the Code.
It is the case of the petitioner that the house at Roop Nagar Jammu near PS Janipur and a house at Madana Poonch were included in the subject matter of the earlier case FIR No. 67/1998. However, it is also needful to mention that the respondent organisation while admitting this fact has alleged that the house at MadanaPoonch- the ancestral place of residence of the petitioner was substantially altered/renovated during the year 2009-10 26 and the additional cost of the house was valued at Rs. 27,36,920/-. Regarding the house at Roop Nagar 101-A Shiva Enclave near PS Janipur, it is alleged by the respondent organisation as per the impugned case that the said house came to be purchased by the petitioner-accused and his wife during the year 2003 from one Sandeep Verma S/O. Khush Dev Verma resident of Palora Jammu at an amount of Rs. 9,50,000/-. It is, however, admitted by the respondent organisation in its case that the petitioner accused obtained a loan of Rs. 7,50,000 from Punjab National Bank, Ragunath Bazar, Jammu after mortgaging the said house along with the land.
30. The petitioner/accused in his supplementary affidavit dated 29.10.2010 replied to the allegations/charges made against him in the impugned case and he has, inter-alia, as regards the house at Madana Poonch coming in the subsequent impugned FIR also, replied that same is the ancestral house and he i.e. petitioner has inherited only a share in the said house, as there are other co-sharers as well consisting of (1). Mohammad Azam (brother) (2) Mohammad Rafiq (brother) (3) Mohammad Haneef (brother) and (4) Abdul Majeed (brother).
It has been further submitted by the petitioner in the supplementary affidavit that his brother (Mohammad Azam) has retired as Headmaster, when his other brothers are all in the Government service. That one of his brothers is aNumberdar and the renovation, if any, having been done in the ancestral house, has not been done by him. He has further stated in the supplementary affidavit that his entire family including his brothers own more than 300 Kanals of land at Village Madaan. That the income derived 27 from the said land is shared among the family members and, as such, carrying out any renovation with the income becoming available from the land is too ordinary a matter. The petitioner has also denied the said asset, that is, ancestral house at Madana Poonch being valued at Rs. 27.36 lacs. Regarding the house at Janipur Jammu which also was the subject matter of assessment of the earlier FIR No. 67/1998, petitioner has stated on oath that the said house was acquired by him in November, 2003. That he and his wife borrowed the loan from Punjab National Bank to the extent of Rs. 7.50 lacs which constitutes a substantial portion of the consideration amount. That his family could afford to pay Rs. 2 lacs over the bank loan amount in connection with the purchase of the said house.
31. Regarding the property i.e. house at Humhama Srinagar, the petitioner has stated on oath that he is neither the owner nor in possession of the land/house which belongs to one Kamal Singh S/O. Amarnath R/O. Chenni Himmat, Jammu. He has stated that neither the lease deed in respect of the said house is in his name nor any amount of money has been deposited by him.
It is undisputed that the learned Special Court i.e. Court of Additional Sessions Judge Anti-Corruption Bureau, Jammu vide its order dated 05.06.2010 passed on the application of one, Kamal Singh i.e. the alleged benamidar directed the unsealing of the house at Friends Enclave, Humhama, Budgam, Kashmir and the handing over of the keys thereof to the said applicant (Kamal Singh), however, the said order is subject to some conditions.
28
The petitioner/accused has placed on record with the permission of this Court, a copy of the order dated 06.01.2011 passed by the learned Special Judge Anti-Corruption Jammu while disposing of two appeals under Section 8-C of the Act, one filed by the petitioner/accused and other filed by one Kamal Singh S/O. Amarnath (alleged benamidar) whereby the impugned order of attachment dated 05.10.2010 was set aside with the direction for release of the attached property i.e. House at Humhama, Airport Road. The said order dated 06.01.2011 of the learned Special Court came to be assailed before this Court by the respondent organisation but is reported to have suffered dismissal vide order dated 20th September, 2023. The matter is also reported to have reached the Hon'ble Supreme Court. The petitioner has placed on record a copy of the order dated 10.07.2024 passed by the Hon'ble Supreme Court in Special Leave Petition (Criminal Diary) No. 48657/2023 titled "Union Territory of Jammu and Kashmir and Anr vs. Kamal Singh" which reveals that the said petition has been dismissed.
32. Regarding the property titled as "Regal Banquet Hall" with four shops at Gho Manhasan Road, Jammu, the petitioner as per his supplementary affidavit dated 27.10.2010 has stated that the said property has already been investigated and does not belong to the deponent- petitioner.
The petitioner through his supplementary affidavit has also placed on record the clarification regarding his other movable properties and the sale deeds.
29
It is needful to mention that regarding the alleged disproportionate property titled as Regal Banquet Hall at Gho, Manhasan Road, Jammu, it is admitted by the respondent organisation/bureau that the said asset is not included in the DA case of the petitioner due to "Insufficient Evidence".
33. In the facts and circumstances of the case, a pre-registration enquiry was not only to be required for and confined to the ascertainment of the likely commission of a cognizable offence(s) but also to rule out as to whether the impugned successive FIR for the reasons:-
"(i) Covering some of the properties that already existed in the earlier FIR No. 67/1998 of the respondent organization/Bureau;
and
(ii) all the alleged properties in the earlier and impugned FIR deemed to have been amassed in the course of the same transaction, is not activated by malafides, unfair and oppressive". Needful to mention that properties titled , "Regal Banquet Hall" at Gho Manhasan Road Jammu" also alleged as per impugned FIR to be disproportionate for having been obtained through misconduct, was excluded by the Respondent-Bureau itself during investigation, for not belonging to the petitioner. This fact also lends support to the contention of the petitioner.
34. In the opinion of the Court, the impugned successive FIR, which overlaps the scope and ambit of the earlier FIR, appears to be violative of the fundamental rights of the petitioner especially guaranteed under Article 21 of our Constitution as also the provisions of the law contained under 30 Section 300 of the Code corresponding to Section 377 of the BNSS. Admittedly, the impugned FIR covers some properties which were already the subject matter of the earlier FIR No. 67/1998.
35. It can be safely pointed out that the allegations levelled through the impugned case FIR No. 15 of 2010 can be said to have been committed in the course of the same transaction of earlier allegations.
This Court in its opinion feels fortified with the authoritative judgment of the Hon'ble Apex Court cited as "T.T. Antony vs. State of Kerala and Ors (2001) 6 SCC 181"also relied upon by the learned Counsel for the petitioner/accused. It is profitable to reproduce the relevant paras of the relied upon judgment for ready reference:
"A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that sub- section (8) of Section 173 Cr.P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narangs' case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr.P.C. or under Article 226/227 of the Constitution."31
A similar view has been taken in " Anju Choudhry vs State of UP (2013) 6 SCC 384, Upkar Singh vs. Ved Prakash and Ors (2004) SC 4320" and "Govind Singh vs. Union Territory of Jammu and Kashmir".
In Anju Choudhry cited supra, it was observed by the Hon'ble Court:
"it will, thus be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different or even where the subsequent crime is of such a magnitude that it does not fall within the ambit and scope of the FIR, recorded first, then a second FIR could be registered."
The Hon'ble Supreme Court in the said case outlined the specific circumstances under which registering a second FIR would be justified :
"a. When the second FIR is counter complaint or presents a rival version of a set of facts, in reference to which an earlier FIR already stands registered.
b. When the ambit of the two FIRs is different even though they may arise from the same set of circumstances.
c. When investigation and/or other avenues reveal the earlier FIR or set of facts to be part of a larger conspiracy. d. When investigation and/or persons related to the incident bring to the light hitherto unknown facts or circumstances.
e. Where the incident is separate;"
This Court also feels supplemented in its opinion by the judgment passed by its Coordinate Bench on 10.03.2023 in CRM(M) NO. 90/2020 titled "Bopinder Singh Dua vs. UT of J&K", in which under the similar circumstances a successive case FIR was quashed.
36. This Court in the attending facts and circumstances is of the opinion that an exceptional case appears to be made out, and the non- interference by this Court is likely to result in miscarriage of justice. The 32 Hon'ble Apex Court in "MS Neharika Infrastructure Private Ltd vs. State of Maharashtra and Ors. (2021) CriLJ 2419"decided on 13.04.2021, has laid down certain guiding principles for consideration in connection with the hearing of petitions filed under Section 482 of the Code corresponding to Section 528 BNSS or under Article 226 of the Constitution of India. Although the Hon'ble Apex Court has stressed that criminal proceedings ought not to be scuttled at the initial stage as the functions of judiciary and the police are complementary, not overlapping, yet the interference in exceptional circumstances has been permitted.
37. The respondent organisation did not investigate the properties covered under the impugned FIR by way of any further investigation as no such liberty was reserved by the respondent while closing the evidence in the earlier case FIR No. 67/1998 as 'not proved' nor did the respondent organisation sought such liberty from the Special Court before which the earlier final closure report was presented.
38. It has been held by the Hon'ble Apex Court in "Nirankar Nath Panday vs. State of UP and Ors (Criminal Appeal No. 5009/2024)"
decided on December 4, 2024 at Para-11 of the judgment as under:
"We find it pertinent to note that in cases such as these where disproportionate assets are being dealt with, the amounts under scrutiny cannot be looked at in the same manner as one would do a Bank statement or daily ledger of income and expenditure. The scrutiny process cannot be as mechanical as that when you are examining declared assets and the income of an individual over such a long period of time. There has to be a certain margin that is given while making such an assessment as there are 33 invariably economical fluctuations that would have taken place, especially over the course of nearly twenty-five years. It is crucial to have a nuanced appreciation of how time and economic conditions affect asset value in such cases."
39. The learned counsel for the petitioner in the course of his arguments and while placing reliance on the authoritative judgment of the Hon'ble Apex court cited as "O Panneerselvam vs. State represented by Dy. Superintendent of Police and Ors SLP No. 16221/2024" decided on 29.11.2024, contended that "In view of the clear position of the law as laid down by the Hon'ble Supreme Court, this Court is required to consider the allegations of both the case FIR No's. 67/1998 and 15/2010 in juxtaposition and then to take a considered view in the light of the allegations against the petitioner accused."
40. The respondent organisation has already presented the final report/challan in the impugned case FIR, which is pending disposal before the Special Court Anti-Corruption Jammu. As per the charge report, the petitioner is alleged to have committed the offences punishable under Sections 5(2) read with Section 5(1)(e) of the P C Act, 120-B RPC, 12/14 Public men and Servants Declaration of Assets Act, 1983 and Section 3/4 of J&K Benami Transactions (Prohibition Act) 2010, by abuse and misuse of his official position, as a public servant during his period of service and thereby amassing wealth in the shape of movable and immovable assets disproportionate to his known sources of income. The wife of the petitioner Smt. Hameeda Begum is also alleged to have abetted the petitioner-husband in the commission of the offences. Likewise, Shri. 34 Kamal Singh a friend of petitioner, is also alleged to have conspired with the petitioner/accused in raising the disproportionate asset i.e. house at Humhama Airport Road, Budgam through benami transaction in his name. As per the perusal of the records, the said Kamal Singh figuring as accused No.3 in the charge sheet has also already filed a separate petition before this Court for quashment of the charge sheet arising out of the impugned case FIR No. 15/2010 which was earlier clubbed with the instant petition, but subsequently came to be segregated vide interim order dated 14.09.2021.
41. It is needful to mention that vide order dated 17.12.2011 passed in the instant petition, the filing of the charge-sheet was stayed till further orders and subsequently vide order dated 12.12.2012, the Investigating Officer was allowed to file the final report/challan before the Court of competent jurisdiction, however, with the direction that the trial court shall not proceed with the trial of the case. The said interim order dated 12.12.2012 was extended from time to time and is in force as on date. Thus, it is clear that although the final police report/challan arising out of the impugned case FIR has already been filed before the competent Special Court on 03.01.2013 as Charge-sheet No. 1 dated 03.01.2013, yet the trial on the same stands stayed during last more than 12 years. The respondent organisation has listed as many as 96 witnesses in support of its case.
42. It was inter-alia submitted by the learned counsel for the petitioner during his arguments that the petitioner/accused as well as his wife, who happens to be the accused No. 2 in the case, have already retired from the 35 Government Service and their post-retiral benefits as well as the pension case(s) have not been completely processed/settled on account of the pending criminal case that has emanated from the impugned case FIR. The learned counsel during his arguments submitted that the petitioner and his wife (Accused No. 1 and 2) have been suffering badly as they are not in a position to manage the marriage of their children on account of the non- settlement of their retirement cases in full.
43. It has been held by the High Court of the Madhya Pradesh at Gwalior, in case titled Santosh Gujjar and Ors vs. the State of Madhya Pradesh and ors Misc Criminal Case No. 10163 of 2024 dated 20.08.2024 at para 29.5 of the judgment as under:
"While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases."
44. In the backdrop of the aforementioned facto-legal scenario of the case, this Court is of the opinion that registration of the impugned case FIR No. 15/2010 with the respondent organisation was not justified under law especially in terms of the observations of the Hon'ble Apex Court made in "T.T. Antony vs. State of Kerala and Ors (2001) 6 SCC 181"and "Upkar Singh Vs. Ved Prakash and Ors (2004) SC 4320." The outcome of the merit of the impugned case, in its peculiar facts and circumstances cannot be awaited, as the very registration of the impugned case FIR giving rise to the pending final report/challan lacked justification under law. No pre- registration open enquiry which was desirable in the facts and 36 circumstances of the case, especially having regard to the investigation in the earlier case FIR No. 67/1998, ending in closure report was held by the respondent organisation. Secondly, some of the assets were admittedly covered under the earlier case FIR, when some other asset was subsequently dropped during investigation of the case as not belonging to the petitioner. Even otherwise, the allegations as per the impugned case FIR are supposed to be the part of the earlier transaction. The implications of the subsisting impugned case FIR and the pendency of the final report before the competent Special Court are supposed to have become oppressive against the petitioner/accused. The pending prosecution arising from an unjustified FIR is also supposed to have affected the quality of life of the petitioner/accused as well as his family out of mental trauma.
45. It is needful to mention that a petition under Article 226 of the Constitution of India is maintainable for quashment of criminal proceeding at investigation, enquiry or trial stage at par with a petition under Section 482 of the Code (Section 528 of the BNSS). In the celebrated decision of the Hon'ble Apex Court passed in "State of Haryana And Ors vs Ch. Bhajan Lal And Ors AIR 1992 SC 604", the Hon'ble Court considered in detail the scope of the High Courts powers under Section 482 Cr. PC and/or Article 226 of the Constitution of India to quash the FIR by referring to several judicial precedents.
46. This court is conscious of the law laid down by the Hon'ble Apex Court in State of Haryana and Ors v. Bhajan Lal and ors AIR 1992 SC604, Upkar Singh vs. Ved Prakesh and ors (2004) SC 4320 and Neharika Infrastructure Pvt Ltd vs. State of Maharashtra and Ors 2021 37 CrLJ 2419: SCC online SC 315, to the effect that courts should not normally interfere with the criminal proceedings at the initial stage especially were commission of the cognizable offence(s) is apparently discernible, unless there are compelling reasons to do so, for the allegations being absurd or actuated by malafides/malice.
As hereinbefore mentioned, the registration of the 2nd FIR impugned in the petition, is not justified in the peculiar facts and the circumstances of the case, especially having regard to the registration of the earlier case FIR ending in closure report and the over lapping of the scope and ambit of the two FIR's.
47. The Respondent organization after registering the impugned case FIR under Section 5(2) of the PC Act, also added the offences under sections 3/4 J&K Benami transactions (Prohibition Act) 2010, 120 B RPC and 12/14 Public men and servants Declaration of Assets Act 1983 and investigated the same also which offences also find place in the final police report/challan.
48. This court on the basis of the afore detailed facto-legal discussion, observed that the basic registration of the impugned successive FIR is not legally sustainable.
It is needful to mention that offence under Section 4 of the J&K Benami Transactions (Prohibition) Act 2010, is non cognizable and as such the Respondent organization could not have investigated the said offence without the permission from the competent Court. 38
Besides, the offences under sections 120 B RPC, 4 J&K Benami Transactions (Prohibition) Act 2010 and 14 J&K Public men and Servants Declaration of Assets Act 1983, have been alleged against the petitioner and co-accused, in relation to the main offence under section 5(2) PC Act, the registration through impugned FIR, in respect of which main offence, is invalid in the opinion of the Court.
50. This court is also conscious of the fact that the corruption cases need to be dealt with heavy hands, as constituting heinous crime, eating the vitals of the society, but as hereinbefore observed exceptional circumstances appear to be made out in the present case for interference in the ends of justice.
51. Without prejudice to the opinion of the court that the registration of the impugned second FIR is not justified and valid under law, any idea of allowing the pending trial to run, while considering the broader probabilities, shall subject the petitioner and his wife to great oppression and prejudice.
53. In the backdrop of the foregoing facto-legal scenario of the case, the petition is allowed and the impugned case FIR bearing No. 15 of 2010 of the Respondent organization/Bureau along with the final charge sheet dated 03.01.2023 emanating from the same and pending before the Ld. trial court is quashed.,
54. The interim release/detachment/desealing orders passed by this court or the trial court (i.e Court of Special Judge Anti Corruption Jammu) in respect of any movable or immovable property in the case FIR shall 39 become absolute after the expiry of the period of 90 days, provided no challenge is thrown, to this judgment, within such period.
55. The petition is accordingly, disposed off.
(MOHD YOUSUF WANI)
JUDGE
Jammu
15.05.2025
Ayaz Secy
i) Whether the Judgment is reportable in law books/journals: Yes.
ii) Whether judgment is reportable in Media(Print/Electronic) ? No
ii) Whether the Judgment is speaking: ? Yes.