Jammu & Kashmir High Court - Srinagar Bench
Nisar Ahmad Bhat vs Ut Of J&K And Others on 2 September, 2021
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
.....
CRM(M) No.279/2020
Reserved on: 21.08.2021
Announced on: 02.09.2021
Nisar Ahmad Bhat
.......Petitioner
Through: Mr. S. F. Qadri, Sr. Advocate, with Ms
Lyba, Advocate
Versus
UT of J&K and others
.......Respondents
Through: Mr. B. A. Dar, Sr. AAG.
Coram:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Challenge in this petition, preferred under Section 482 of the Code of Criminal Procedure, is thrown to FIR No.23/2020, registered at Anti- Corruption Bureau, Kashmir, Srinagar (for brevity "ACB") on 17th November 2020, under Sections 5(1)(c), 5(1)(d) read with Section 5(2) of Jammu and Kashmir Prevention of Corruption Act, 2006, and Sections 467, 468, 471 and 120-B RPC.
2. The case set up by petitioner is that he has retired on attaining the age of superannuation as Incharge Chief Engineer, PWD(R&B), on 30th June 2018 and at that time, neither there had been any criminal case registered or under investigation against him, nor had there been any departmental enquiry contemplated or pending against him. It is stated that in the year 1998, while petitioner was posted as Assistant Executive Engineer, PWD(R&B), Budgam, the Telecom Department intended to lay cables along the Humhama-Budgam and Budgam- Yechgam general roads, for which it had to dig the berms of the roads. The Telecom Department, in terms of the Rules, was asked to deposit restoration charges of the roads to the tune of Rs.1,44,500/- before 2 CRM(M) no.279/2020 undertaking the work, which the Department did. After cables were laid by Telecom Department, given the fact that these were general roads, with a view to ensuring safety of commuters and to avoid any vehicular accident/mishap and, thereby, avert human loss, they needed immediate repairs and restoration and, therefore, PWD (R&B) Division, Budgam, got restoration works done through contractors on emergency basis. It is averred that about a year or so thereafter, ACB, on some complaint, initiated a Preliminary Enquiry under PE No.C-02/2000 into these works done by the R&B Division Budgam. Since on enquiry by ACB, no case was found made out, the matter was closed way back in 2003. It was, however, submitted that it was left open to R&B Department to initiate departmental enquiry as regards irregularities against concerned officers/officials. It is maintained that no enquiry was initiated against petitioner or, for that matter, against any officer or official and petitioner was promoted from time to time and he rose through ranks and was posted and working as Incharge Chief Engineer at the time of retirement.
3. It is also the case of petitioner that after retirement, he was required to fulfill certain prerequisites to get his promotions regularised and pensionary benefits settled. And in this regard, he approached the Department/Government to issue certificates, including No Demand Certificate, Vigilance Clearance Certificate etcetera. According to the petitioner, it was during the course of fulfilling these formalities that it was thought appropriate to have an enquiry conducted as had been mentioned in PE report made by ACB way back in 2003.
Consequently, the Government in Public Works Department, referring to aforesaid PE No.C-02/2000, issued Order No.244-PW(R&B) of 2019 dated 16.05.2019, according sanction to the appointment of Mr.Syed Arif Yasvi I/C Chief Engineer, PW(R&B) Department, Kashmir, as Inquiry Officer to enquire into the allegations leveled against petitioner in his capacity as Assistant Executive Engineer, R&B Division, Budgam. Petitioner maintains that Inquiry Officer, i.e., the Chief Engineer, by his letter No.CE/RBK/PS/ 8416 dated 26.06.2019, 3 CRM(M) no.279/2020 submitted report on the enquiry, recording his finding that the charges leveled against petitioner were totally baseless, recommending that allegations against retired officer be dropped. In consequence thereof, the Government of Jammu and Kashmir in the Public Works (R&B) Department, vide Government Order No.511 JK-PW(R&B) of 2019 dated 06.12.2019, dropped the allegations against petitioner and closed departmental proceedings against him. According to the petitioner, the actions so taken by the Government were communicated by it to the Director, ACB, for information who accepted the same and communicated the acceptance of the Action Taken Report (ATR) to Commissioner/Secretary to Government, PW(R&B) Department, vide letter No.ACB-PE-C-02/2000-1149 dated 22.01.2020. In is, thus, submitted, that PE No.C-02/2000 stood closed. It is, nevertheless, asserted that about 09 months thereafter, respondent no.2 addressed a letter No.ACB-PE-C-02/2000-1585 dated 28.10.2020 to Chief Engineer PW(R&B) Department, Srinagar, directing him to furnish copy of entire enquiry file and supporting record for further course of action as desired by General Administration Department, whereafter impugned FIR has been registered. It is this FIR, of which petitioner is aggrieved and seeks quashment thereof on the grounds mentioned in the instant petition.
4. It is seen that the offences are alleged to have been committed 22 years back, i.e., in the year 1998-99, while petitioner was posted as an Assistant Executive Engineer in R&B Division, Budgam. It is mentioned in FIR that a preliminary enquiry was conducted by ACB J&K on a source report that large scale bungling was committed by the officers/officials of R&B Division, Budgam, in connection with execution of some works. It is alleged in impugned FIR that the officers, named therein, including petitioner, drew lakhs of rupees during the year 1998-99 in connivance with concerned contractors and embezzled the same against unexecuted works or the works that had been already executed by Telecom Department. In FIR it is also made mention of that during the course of enquiry it was found that the road 4 CRM(M) no.279/2020 leading to Yechgam and Sheikhpora was damaged due to laying of cables by the Telecom Department and the damaged work was shown to be undertaken by R&B Division Budgam at a cost of Rs.1,40,353/- in clear violation to codal formalities. The payments had been made against hand receipts and the works, too, had been executed without observing the codal formalities. Further, it had also been found that the amount was drawn through cheques bearing nos. A/2804247, A2/804249, A/2804250 and A/2804251 on the name of contractors, namely, Mohammad Hashim Raina S/o Abdul Samad Raina R/o Hassipora, Chadoora : Rs.35,750/-; Mukhtar Ahmad Bhat S/o Ali Mohammad Bhat R/o Eidgah : Rs.19,070/-; Javaid Ahmad Bhat S/o Abdul Aziz Bhat R/o Channapora : Rs.49,470/-; and Ali Mohammad Shah S/o Mohammad Sultan Shah R/o Pulwama : Rs.29,920/-. It was found that no NITs and other codal formalities were fulfilled, and one of the contractors, Mohammad Hashim, during the enquiry had deposed that he never executed any work through R&B Division Budgam, nor had he signed any document in this regard, and that his signatures purported to be on various documents were fictitious. It is further recorded in the FIR that the cheques through which the payments had been made were found credited in the account of one Ali Mohammad Shah who had passed away and the other two contractors, namely, Mukhtar Ahmad Bhat and Javaid Ahmad Bhat were found non- existent. According to the FIR, by acting in this manner, the accused officers/officials of the R&B Division Budgam, in pursuance of a well- knit criminal conspiracy with each other, had prepared fictitious record for the repair of damage caused to the roads and misappropriated the amount of Rs.1,34,210 with consequent loss to the State exchequer.
5. It is further mentioned in the FIR that the Government vide letter No.GAD(Vg) 53-RDA/2019 dated 07.10.2020, has decided to reopen the matter for re-investigation and filing of the challan against all the accused officers in the court of law for criminal offences.
6. Respondents, in their response/status report, have reproduced all that is alleged in the FIR and have stated that the communication received 5 CRM(M) no.279/2020 from GAD and the relevant enquiry, i.e., PE, were perused and accordingly case FIR No.23/2020 was registered against the named Engineers of R&B Division, Budgam, including the petitioner, under the mentioned Sections of law. It is recorded therein that during the course of investigation, the IO seized the preliminary enquiry file with relevant documents. In para 8 thereof, the respondents have stated as under:
"8. That the case of the petitioner does not fall in any of the circumstances in which petition u/s 482 Cr. P. C. can be pressed into service, as would warrant interference by the Hon'ble Court u/s 482 Cr. P. C. the investigation of the case FIR is in its infancy stage and all the material facts have yet to come forth, so as to come to definite conclusion into the matter, and in case Respondents Bureau is allowed to proceed ahead with the investigation, matter will accordingly be concluded on merits."
7. Heard and considered. Perused the record.
8. Mr. Qadri, learned Senior counsel appearing for the petitioner, has vehemently argued that since the preliminary enquiry was closed way back in the year 2003, it legally connotes that no offence was made out against petitioner, therefore, the act of respondents in registering impugned FIR is illegal. It is contended that as preliminary enquiry was initiated way back in the year 2000 and impugned FIR has been registered in 2020, it implies that preliminary enquiry was kept running and live for 20 long years which is impermissible in law, for, a preliminary enquiry cannot be extended beyond 07 days inasmuch as there is no provision in the Criminal Procedure Code, authorising re- investigation of a case, especially so when there had not been any FIR registered earlier and that there is an inordinate delay of almost 22 years in registering the case concerning an alleged occurrence pertaining to the years 1998/1999. He also avers that once both the preliminary enquiry as well as departmental proceedings were closed as not out and the result thereof was accepted by the Government and ACB, there was no justifiable reason for respondents to have registered the FIR.
6 CRM(M) no.279/20209. Next submission of learned senior counsel appearing for petitioner is that impugned FIR suffers from illegality in view of the fact that respondent o.2, while exercising powers conferred upon him under Rule 6.167 of Vigilance Manual, has chosen not to register a formal case against petitioner but referred the same to conduct a regular departmental enquiry. Rule 6.167 of Vigilance Manual provides that only those cases in which procedural lapses are found are to be referred for regular departmental enquiry and therefore, while referring the matter for regular departmental enquiry, respondent no.2 has himself accepted that the offence of criminal misconduct was not made out. He has also avowed that once respondent no.2 had accepted the Action Taken Report in respect of a departmental enquiry conducted against petitioner in reference of PE No.C-02/2000, there is no scope left for respondent no.2 after such acceptance to reopen/ reinvestigate the case on any count whatsoever and that exercise of power in registration of FIR is, thus, bad in law as respondent no.2 vide letter dated 22nd January 2020 had accepted findings of Enquiry Officer read with Government Order dated 6th December 2019, closing the case against petitioner. He states that limited scope of preliminary enquiry is to determine whether a cognisable offence is made out from contents of information or not and that ACB, a statutory body, is to follow Vigilance Manual 2008 in letter and spirit. While saying so, he has placed reliance on Dr. Saleem ur Rehman v. State of J&K, 2018 (2) SLJ 837. It is also stated by him that on the question of how, when and under what timeline should preliminary enquiry be conducted, the Supreme Court has laid various yardsticks qua registration of FIR and scope of preliminary inquiry, in Lalita Kumari v. State of U.P., (2014) 2 SCC 1. He has also relied upon State of Assam and others v. J.N. Roy Biswas (1976) 1 SCC 234; Ramachandran v. R. Udhayakumar and others, (2008) 5 SCC 413; Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762; State or Rajasthan and others v. Heem Singh, 2020 SCC Online SC 886, to contend that standard of proof required to prove a case in a departmental proceeding is based on preponderance of 7 CRM(M) no.279/2020 probabilities, a standard much lower to the one required in a criminal proceeding and that the department, armed with such a standard, had untrammelled power in bringing out the truth of allegation imputed against accused. However, in the present case concerned Department, after a thorough inquiry, spanning two decades, has failed to attribute any of the allegations against petitioner.
10.On the other hand, Mr. B. A. Dar, citing the allegations mentioned in the FIR, reiterated that the case of petitioner does not fall in any of the circumstances identified by the Supreme Court in which interference by the Court is warranted.
11. As is discernible that impugned FIR has been registered pursuant to letter no.GAD(Vig)53-RDA/2019 dated 7th October 2019, issued by the General Administration Department. The relevant portion of the FIR is, thus, profitable to be quoted hereunder:
"...As vide communication No.GAD(Vig)53-RDA/2019 dated 07.10.2019, the competent authority has decided to reopen the matter for re-investigation and filing of challan against all the officers in the court of law for the criminal offences, accordingly, a case FIR No.23/2020 is registered against Shri ...". (underlining supplied)
12.Impugned FIR, on its glimpse, unequivocally unveils that the case has been decided and ordered to be reopened for reinvestigation and for filing of the challan for criminal offences against petitioner and others. Such a course is not permitted in law rather is barred by law. Reinvestigation portrays fresh investigation that is not permitted by law. Section 173(8) of the Code of Criminal Procedure, at the most, provides further investigation, not fresh investigation. The law in this behalf is not res integra. The Supreme Court in Ramachandran v. R. Udhayakumar, (2008) 5 SCC 413, has held that from a plain reading of Section 173 of the Code, it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the Police has right to further investigate under Subsection (8), but not fresh investigation or reinvestigation. The Supreme Court in paragraph 7 of the above judgment cited with approval its earlier judgment rendered in the case of K. Chandrasekhar v State of Kerala, (1998) 5 8 CRM(M) no.279/2020 SCC 223. The Supreme Court, again, in Mithabhai Pashabhai Patel v. State of Gujarat, (2009) 6 SCC 332, has said:
"13. It is, however, beyond any cavil that 'further investigation' and 'reinvestigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a 'State' to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction...".
13.As is gatherable from above, even higher Court of the country cannot issue a direction for reinvestigation of a case. In such circumstances, impugned FIR registered for reinvestigation cannot be sustained in law as such a course is neither provided nor permissible under the Code.
14.In the instant case, the matter does not terminate there. The original record, called for and produced before the Court, divulge that way back in the year 2003, Senior Superintendent of Police (ABP), Vigilance Organization, Srinagar, vide no.SSP(ABP)/2003/1149 dated 15th October 2003, made a report to Commissioner of Vigilance, recommending that the matter could not be investigated at that belated stage for want of sufficient evidence - oral and documentary. He had reported that some irregularities had been detected and it would be proper to send complaint to concerned departments for holding departmental enquiries against the officers involved. As is apparent from the record that Commissioner, Vigilance, through his Administrative Officer vide letter no.CV/CS/PE-C-02/2000-10157 dated 9th December 2003 wrote back to Senior Superintendent of Police, as under:
"Kindly refer your office communication No.SSP/APB/2003/1149 dated 15.10.2003 whereunder you had recommended for closure of above captioned PE for Departmental Action.
Your recommendations after having been legally examined by the Prosecution wing of central office, has been approved by the Commissioner of Vigilance for Departmental Action. You are, accordingly, requested to take up the matter for initiating Departmental Enquiry against the delinquent Officer named in the subject with the concerned Administrative Department with a copy to concerned Head of the Department as also to this office.
The recommendation letter should be drafted strictly in accordance with the instructions conveyed vide this office order No.261 dated 28.11.2003. The records as per index are returned herewith."9 CRM(M) no.279/2020
15.From the above it emerges that enquiry by Investigating Agency against petitioner stood closed. The matter, thereafter, appears to have remained pending in office of Senior Superintendent of Police (ABP), Vigilance Organization, till March 2005. Ultimately, Senior Superintendent of Police addressed a letter no.SSP(ABP)05-297-99 dated 4th March 2005 to Commissioner/Secretary to Government, R&B Department, J&K Government, Jammu, giving therein the details of the complaint received, the enquiry held by the Vigilance Organization, and its findings with the following operative part thereof:
"I am, therefore, directed to request you to kindly initiate Regular Departmental Enquiry against the aforesaid officials under Rule 33 and 34 of J&K Government Servants (Classification, Control and Appeal) Rules, 1956 for having failed to maintain absolute integrity in discharge of their official duty.
The records and assistance, if required, may kindly be had from this office and the result of the enquiry so conducted may also be shared with us for further course of action, please. "
16.Ostensibly, the Government slept over the matter and, during the interval, petitioner was promoted upto the rank of Chief Engineer and on attaining the age of superannuation, he retired 30th June 2018. The Government vide Order no.244-PW(R&B) dated 16th May 2019, appointed Chief Engineer, PW(R&B) Department as Enquiry Officer. He, vide letter dated 26th June 2019, submitted his report recommending dropping of allegations levelled against retired officer. This report and recommendation were duly accepted by the Government, as is self-evident from Order no.511 JK PW(R&B) of 2019 dated 06.12.2019, closing the enquiry. Copy of order, among others, was endorsed to Secretary to Government, General Administration Department, with reference to their OM No.GAD (Vig)02.NOC/2018.PW(R&B)-IV dated 24th July 2018, and Director, ACB, J&K, Jammu, with reference to their letter No.VO/45-29/NOC- 2018-PW(R&B)-8239 dated 24th May 2018. The Director, ACB, J&K, in turn, vide No.ACB-PE-C-02/2000/1149 dated 22nd January 2020, bearing the subject ÁTR in respect of Shri Nisar Ahmad Bhat, I/C Chief Engineer, PW R&B Department, Kashmir', intimated Commissioner/Secretary to Government, PW(R&B) Department, J&K, 10 CRM(M) no.279/2020 Jammu, that the Action Taken Report (ATR) in respect of the public servant mentioned in the subject (of the letter) had been accepted.
17.It is, thus, evident from above discourse that an officer of no less than the rank of a Senior Superintendent of Police of the Vigilance Organization has way back in the year 2003 reported that the matter could not be investigated at that belated stage (in 2003) for want of sufficient oral and documentary evidence and recommended closure of the enquiry. This report and recommendation were duly accepted by Vigilance Commissioner and by the Government inasmuch as the Government, acting on the opinion of Vigilance Organization, ordered holding of departmental enquiry against petitioner, albeit belatedly, that too has been closed. So, there appears to be no point in ordering reopening of the matter and reinvestigating the complaint, that too 22 years after the works had been executed and completed, and 18 years after it had been closed, more so when the report on the departmental enquiry, too, has been accepted and allegations dropped. No reason is disclosed in impugned FIR for ordering reinvestigation, except that the object disclosed is filing of challan against all the officers in the court of law for the criminal offence, which, as said above, has never been the conclusion of enquiry conducted by Investigating Agency. It is settled that reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or rubber-stamp reasons is not to be equated with a valid decision-making process. In the instant case, there is no reason, at all, disclosed in the communication dated 7th October 2020 on the basis whereof impugned FIR has been registered. The action appears to be not only unreasonable, inordinately belated, outcome of an afterthought but it gives a reason to any prudent person to conclude that it is not well intended.
18.Coming to the argument advanced at the Bar by Mr. B. A. Dar, learned Sr. AAG, that the case of the petitioner does not fall in any of the circumstances in which this petition could be pressed into service, let me examine the relevant judgment(s). In this regard the celebrated judgment of the Supreme Court in State of Haryana v. Bhajan Lal, 11 CRM(M) no.279/2020 1992 Supp (1) SCC 335, occupies the field. Therein the Supreme Court considered in detail the scope of the powers of the High Court under Section 482 Cr. P. C. and/or Article 226 of the Constitution of India, to quash an FIR. The Supreme Court, upon referring to several of its judicial precedents, identified following cases in which FIR/ complaint can be quashed:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the 21 proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
19.It barely needs reiteration that the Vigilance Organization, way back in the year 2003, categorically reported that the matter could not be investigated at the belated stage for want of sufficient oral or documentary evidence. Furthermore, in Lalita Kumari (supra) the important issue which arose for consideration in the referred matter to the Five Judge Constitutional Bench of the Supreme Court, was "whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal 12 CRM(M) no.279/2020 Procedure, 1973 or the police officer has the power to conduct a 'preliminary inquiry' in order to test the veracity of such information before registering the same?" The Constitutional Bench in paragraphs 117 to 119 of the judgment laid down as under:
"117. In the context of offences relating to corruption, this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595] expressed the need for a preliminary inquiry before proceeding against public servants.
118. Similarly, in Tapan Kumar Singh [CBI v. Tapan Kumar Singh, (2003) 6 SCC 175], this Court has validated a preliminary inquiry prior to registering an FIR only on the ground that at the time the first information is received, the same does not disclose a cognizable offence.
119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR."
20.Then under the heading conclusion/Directions, in paragraph 120, the Supreme Court laid down as under:
"Conclusion/Directions
120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.13 CRM(M) no.279/2020
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case.
The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. 120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
21.It is thus seen that the law laid down is that if the information received does not disclose a cognizable offence, but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not, and that if the inquiry discloses the commission of a cognizable offence, the FIR must be registered.
22.In the instant case, it is reiterated that the Vigilance Organization had not registered the FIR, obviously, because the information received had not disclosed a cognizable offence. However, the information had indicated the necessity for a preliminary inquiry, obviously, for the limited purpose of ascertaining as to whether a cognizable offence has been committed. Such preliminary enquiry was, admittedly, conducted which had ended in closing the source information / complaint on the basis of which the preliminary enquiry had been initiated. The legal inference, therefore, is that the Vigilance Organization came to the conclusion that no offence was made out. In fact, that was the report 14 CRM(M) no.279/2020 made by Senior Superintendent of Police, which was accepted by the Commissioner, Vigilance.
23.In the backdrop of above facts and circumstances of the case, it cannot lie in the mouth of learned Sr. AAG that the case of petitioner does not fall in any of the circumstances in which this petition under Section 482 Cr. P. C. could be pressed into service to quash impugned FIR. Certainly, it is self-evident that the instant case falls under the first three categories identified by the Supreme Court in Bhajan Lal (supra). Therefore, on those counts as well, impugned FIR deserves to be quashed.
24.It needs also to be borne in mind that in conclusion/Direction 120.7. of the Supreme Court judgment in Lalita Kumari (supra), it has been laid down that while ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and, in any case, it should not exceed seven days. In the instant case, having regard to the fact that impugned FIR has been lodged after 18 years of preliminary enquiry, the rights of petitioner have been sought to be violated to the hilt.
25.Taking into account above discourse, I am of the considered view that impugned FIR cannot and does not withstand the scrutiny of established law. It, therefore, deserves to be quashed.
26.This petition is, accordingly, allowed and impugned FIR No.23/2020 dated 17th November 2020, registered at Anti-Corruption Bureau, Kashmir, Srinagar, is quashed.
27.Record be returned to learned counsel for respondents.
(Vinod Chatterji Koul) Judge Srinagar 02.09.2021 Qazi Amjad, Secy Whether approved for reporting: Yes QAZI AMJAD YOUSUF 2021.09.03 14:21 I attest to the accuracy and integrity of this document