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Jammu & Kashmir High Court - Srinagar Bench

Mohammad Maqbool Wani vs State Of J&K; And Another on 27 September, 2018

Author: M. K. Hanjura

Bench: M. K. Hanjura

            HIGH COURT OF JAMMU AND KASHMIR
                      AT SRINAGAR
                           .....

561-A No. 295/2017 MP No. 01/2017 Date of order: 27.09.2018 Mohammad Maqbool Wani v.

State of J&K and another Coram:

Hon'ble Mr. Justice M. K. Hanjura, Judge Appearing Counsel:

For Petitioner(s): Mr. R. A. Jan, Sr. Advocate with Ms. Sharaf Wani, Advocate For Respondent(s): Mr. N. H. Shah, AAG Whether approved for reporting? Yes

1. Exercise of the inherent powers stemming from the provisions of the Section 561-A of the Code of Criminal Procedure, aiming at setting at naught and quashing the Final Report under Section 173 of the Code presented by the Vigilance Organisation Kashmir (VOK) before the court of the learned Special Judge Anticorruption, Srinagar (for brevity the "court below") and also the criminal proceedings engendered therefrom, are implored for.

2. What is emanating from the petition on hand is that the petitioner by Government Order No. 419-Works of 2001 dated 14th September 2001 was promoted on officiating basis to the post of the Assistant Executive Engineer (Civil/Hyd) Wing and was posted in the Lakes and Water Ways Development Authority, Srinagar (LAWDA), as Incharge Assistant Executive Engineer against an available vacancy. Petitioner in terms of the Order No. 126-

LDA of 2001 dated 24th December 2001 was designated as 561-A No. 295/2017 Page 1 of 15 MP No. 01/2017 the Environmental Engineer and assigned the duties akin to his field of the specialization. Consequent upon the retirement on the superannuation of the then incumbent of the post of the Watershed Manager, LAWDA, the petitioner by Order No. 37/LDA of 2007 dated 2nd July 2007 was called upon to look after the Watershed Management Division, till substitute was posted to the said Division. Pursuant to the order dated 2nd July 2007 read with the order dated 18th July 2007, the petitioner assumed the charge of the Watershed Manager, LAWDA, with effect from 3rd July 2007.

3. It is also averred in the petition that the petitioner was transferred and posted as the Project Manager (Urban) Kashmir PIU-Economic Reconstruction Agency (ERA) vide Government Order No. 232-PWD (Hyd) of 2008 dated 21st May 2008. In pursuance thereof, the petitioner joined on the aforesaid post on 16th June 2008. It is stated that during the period the petitioner vide aforementioned order dated 2nd July 2007, accentuated by the administrative exigencies was looking after the Watershed Management Division in addition to his duties, was in routine required to sign the Notice Inviting Tender, which otherwise was the job of the Watershed Manager and the petitioner in sync with the mandate of the order of the Division Bench of this Court dated 06.11.2002, put in a stipulation in the NIT no.03 of 2007, providing that the stones be procured from outside source and in routine on due observance of the requisite formalities recorded 20% test check qua the works executed 561-A No. 295/2017 Page 2 of 15 MP No. 01/2017 in pursuance to the NIT no.03 of 2007. On 22.06.2010, the respondent Vigilance Organization registered FIR No. 25 of 2010 under Section 5(1) ( c ), 5(1) (d) read with Section 5(2) Prevention of Corruption Act, etc. and Section 120-B, 467, 468, 279, 420 and 109 RPC, in respect of the works executed in the year 2006-2007, 2007-2008 and 2008-2009. It is also maintained that the respondent Vigilance Organization conducted the investigation in the case FIR no.25 of 2010, which culminated into the Final Report under Section 173 Cr.P.C and was submitted by the respondent Vigilance Organization to the court below. The Final report insofar in relates to the petitioner herein is extracted hereunder:

"The instant case was registered in P/S VOK on 22.06.2010, pursuant to the outcome of Joint Surprise Check conducted into the allegations of abuse of official position by the officers/officials of Water Shed Management (LAWDA) Srinagar regarding construction of Gabion Check Dams at Khimber Takya, Sangh Reshi Srinagar revealed that Mehraj-ud-Din Shah then DFO, M.A. Chisti then DFO, Wiqar Ahmad JE and others under a well-knit conspiracy and in connivance with the contractors abused their official position and misappropriated lacs of rupees in the construction of Gabion Check Dams erected in the shape of stone beds covered with crate wire for treatment of Sangh Reshi Nallah at Khimber Takya Sangh Reshi Srinagar. Ten works wee shown executed by different contractors at a cost of Rs. 109.97 lacs during the financial year 2006-07, 2007-08 and 2008-09. The JSC conducted with reference to these ten works revealed that 35.04 lacs of rupees were shown spent on carriage of stones from Athawajan quarry and Wussan Nallah to the site of construction viz. Nallah Sangh Reshi while as no stone was found to have been used/ transported from these places to the site. Instead available stones at the site were utilized in the construction of Dams. The accused public servants named above had thus resorted to manipulation of records and misappropriated Rs. 35-04 lacs. It has also been found that large quantities of the crate wires shown utilized in these 561-A No. 295/2017 Page 3 of 15 MP No. 01/2017 Gabion Check dams were already existing over which new crate wire work has been based and accordingly executed over the foundation of old check dams raised in the past. It was found at the site that the gauge of two crate wires used was entirely different in size, shape and specification. The underground part of the work 9earth work etc) shown executed in these Gabion Check Dams was also found at variance with the records maintained by the department. However, the payment of existing works has been drawn and paid to contractors.

........

(3) Mohammad Maqbool Wani (then Incharge Watershed Manager LAWDA) S/o Late Gh. Hassan Wani R/o Zangalpora Kulgam.

The accused in his capacity as Incharge Watershed Management Division LAWDA Srinagar has floated NIT No. 03 dated 24.10.2007, wherein he has deliberately kept provision for stones from outside source fully knowing that there was abundance of stone at site, in and around the Nallah and as such, there was no need of stones from outside source. He has passed the bills of two works (a) construction of Babion Check Dam-II at Takiya Sangreshi (Burh Nallah) from RDs 620 to 900m,

(b) Construction of Gabion Check Dam-II at RDs 900 to 1200 m at Takiya Sangreshi (Burn Nallah) having knowledge that works have not been executed as per specifications and no stone has been brought from outside source. He could have easily ascertained the source of stones by demanding the Challans of Geology and Mining Department from the Junior Engineer/Contractors. To achieve the goal of criminal conspiracy, he has maintained criminal silence in this matter. A loss of rs. 4,3,945/- to the state exchequer has been caused in the construction of Gabion Check Dams, the bills of which have been passed by him.

The above mentioned commissions and omissions on the part of accused Mohammad Maqbool Wani, constitute the offence u/s (1) ( c), 5(1)(d) r/w 5(2) P.C. Act Svt. 2006 and sections 120-B, 409, 420, 467, 468, 471 RPC.

On the strength of evidence collected in the course of investigation, prima facie, a case is established against the above mentioned seventeen (17) accused persons under the sections of law shown against each herein above. The Government vide order No. 26-GAD (Vig) of 2013 dated 16.04.2013 has accorded sanction for 561-A No. 295/2017 Page 4 of 15 MP No. 01/2017 prosecution of the in service three accused public servants namely Mohammad Maqbool Wani, Waqar Ahmad Shah and Noor Mohammad Khan as envisaged u/s 6 of J&K Prevention of Corruption Act Svt. 2006..."

4. The petitioner also states in the petition that in view of the Final Report submitted by the respondent Vigilance Organization in the court below, the petitioner has been roped in and arrayed as the accused no.3 on the basis of the so-called Technical Report by the Assistant Executive Engineer, associated by the respondent Vigilance Organization in the course of the investigation of the case FIR no.25 of 2010.

5. It is averred that the petitioner has been implicated in the case FIR No. 25 of 2010 without any basis and for that matter without any warrant, authority or sanction of law. It is the duty of all the concerned to comply with the order of this Court and therefore, keeping the provision in the NIT no.03 for procuring the stones from outside source in deference to an order of the Division Bench of this Court is a conduct compatible to dutiful conduct and thus could not be made in the law the basis for implicating the petitioner in the case FIR no.25/2010 and on the contrary is frowned upon by the law as the gross contempt of the Order of the Division Bench of this Court.

6. The respondent VOK has filed the status report. It is insisted that the instant case was registered in police station VOK on 22nd June 2010 pursuant to the outcome of Joint Surprise Check, conducted into the allegations of abuse of official position by the officers/officials of Water 561-A No. 295/2017 Page 5 of 15 MP No. 01/2017 Shed Management LAWDA, Srinagar, regarding construction of Gabion Check Dams at Khimber Takya Sangresh. The JSC conducted revealed that M/s Mehraj- ud-Din Shah, the then DFO, M. A Chesti, the then DFO, Wiqar Ahmad, JE, and others, under a wellknit conspiracy and connivance with the contractors abused their official position and misappropriated the lacs of rupees in the construction of the Gabion Check Dams erected in the shape of stone beds covered with the crate wire for the treatment of Khimber Takya, Sangreshi, Nallah Srinagar. Ten works were shown executed by different contractors at the cost of Rs. 109.97 lacs during the financial year 2006- 2007, 2007-2008, 2008-2009. The JSC conducted with reference to these 10 works revealed that Rs.35.04 lacs were shown spent on carriage of stones from Athwajan quarry and Wussan Nallah to the site of construction, viz. Nallah Sangreshi, while as no stone was found to have been transported from these places to the site, instead the available stones were utilised in the construction at the site. The accused public servants had thus resorted to manipulation of records and misappropriated Rs.35.04 lacs. It has also been found that the large quantities of the crate wires shown utilized in these Gabion Check Dams were already existing over which new crate wire work has been based and accordingly executed over the foundation of old check dams raised in the past. It was also found at the site that the gauge of two crate wires used was entirely different in size, shape and specification. The underground 561-A No. 295/2017 Page 6 of 15 MP No. 01/2017 part of the works shown executed in the Gabion Check Dams was also found at the variance with the records maintained with the department, however, the payment of the existing works has been drawn and paid to the contractors.

7. The status report also divulges that during the course of the investigation, the tender documents, the allotment orders, the running account bills, the measurement books, the works registers etcetera pertaining to the ten works mentioned in the FIR have been seized from different offices of the Lakes and Waterways Development Authority Srinagar. The statements of the witnesses, conversant with the facts and circumstances of the case, were recorded under Section 161 Cr.P.C. The accused public servants and the accused contractors were examined. It is also averred that during the investigation, it was found that ten works, i.e. construction of Gabion Check Dams, have been executed by the Watershed Management LAWDA, Srinagar, for an amount of Rs. 1,09,99,014.00. In the construction of these Gabion Check dams 7430.54 cubic mtrs of stone costing an amount of Rs. 35,09,105.00 has been shown transported from outside sources (Athwajan quarry-Wussan Nallah) and 6578.65 cubic mtrs of stones costing an amount of Rs. 7,03,015.00 has been shown used from the stone available in and around the Takiya Sangreshi. The above-mentioned Gabion check dams were got inspected by the civil engineer of the R&B Landscape Division, Srinagar. During the spot 561-A No. 295/2017 Page 7 of 15 MP No. 01/2017 inspection, the variation was found in the underground measurements of the works. The height of Gabion check dams on the hill side was found lesser than paid for and the inspection report of the civil engineer revealed that the height of the Gabion check dams on the upstream side has been found shorter than billed for, resulting int eh payment against the excess quantities. As per his report, a total loss of Rs.20,69,380.00 has occurred to the State exchequer on this account.

8. It is further averred in the status report that to ascertain the source of the stones used in the Gabion Check Dams under investigation, a comparative analysis of the stones used in the Check Dams was conducted by the Geologist of the National Information Technology, Hazratbal, Srinagar. As per the report, the Geologist could frame his opinion for only 07 question samples of different Gabion Check Dams. Out of 07 Stones, 04 were opined to have resemblance with the stones available around the site at Takiya Sangreshi and 03 with Wussan Nallah Stones. It is made mention of in the status report that some of the labourers, who had worked in the construction of these check dams, were examined and their statements were recorded under Section 161 Cr.P.C. The labourers have stated that no stone has been brought from outside source and the stones available at the site were used in the construction of these check dams. The 7430.54 cubic mtrs. of the stones shown transported from the outside sources, i.e. Athwajan quarry and Wussan Nallah, against an amount of Rs. 35,09,105.00 561-A No. 295/2017 Page 8 of 15 MP No. 01/2017 could have cost only Rs. 10,14,783.00, at the local stone rate, resulting in a loss of Rs. 24,94,322.00 to the State Exchequer. However, as per the report of Geologist, some seized stones have shown the resemblance with the Wussan Nallah Stones. Consequently, only a loss of Rs.10,18,216/- to the State Exchequer has been calculated in the transportation of the stones from outside sources, giving maximum benefit of the Geologist report to the accused person. During the provision for stones from outside sources has been deliberately kept int eh estimates to misappropriate the transportation charges because the area was found full of stones and there was absolutely no need of transporting stones from outside sources. The civil engineer of the Landscaping Division, Srinagar, has also observed and mentioned in the report regarding the needless supply/carriage of the stones from far off sources when the area has abundance of such material.

9. The status report also unveils that during the investigation some works were found allotted in the names of some contractors and executed by others, thus, indicating a criminal conspiracy among the contractors and LAWDA officials. In this context, specimen signatures of the contractors and the admitted signatures of the LAWDA officials were obtained and sent to FSL, Srinagar, for comparison with the signatures on the documents regarding the above-mentioned works. The reports received from FSL, Srinagar, dated 23.05.2012 and 30.08.2012, established that the works allotted in the 561-A No. 295/2017 Page 9 of 15 MP No. 01/2017 names of M/s Mushtaq Ahmad Mir and Ghulam Qadir Mir, have actually been executed by one Mr Khazir Mohammad Mir because he has affixed their forged signatures on all the documents of this work, like the bill agreement, the rate list and the tender form. Similarly, the work, allotted in the name of Mr Abdul Rehman Dar, has actually been executed by Mr Hafizullah Ganie because his son, namely, Mr Kaiser Ahmad Ganie, has signed as Mr Abdul Rehman Dar, on all the documents of the work, like, the bill agreement, the rate list and the tender form. The contractors, in whose name the work stands allotted, have consented to the forgery and the subsequent fraud and as a sequel whereof, Section 109-B RPC has been invoked against them for their abetment. The FSL report has also revealed that the accused, Nazir Ahmad Reshi, has submitted the tender and also accepted the rate on his own signature for the work allotted to another contractor, namely, Shamim Ahmad Reshi. According to the respondents it has been established that the accused public servants of LAWDA Srinagar in league with the accused contractors have put the State Exchequer to a loss of Rs. 30,87,596.00, in the execution of the above mentioned ten works. The charge sheet against the 17 accused persons, including the petitioner was presented before the court of Special Judge Anticorruption, Srinagar, on 10th June 2013 and is presently on charge stage.

10. The learned senior counsel appearing on behalf of the petitioner has submitted written submissions as well.

Certain judgements to bolster the case set up by the petitioner have been cited, like, State v. Nalini, 1999 (V) SCC 253; AIR 1961 SC 1494; and AIR 1992 SC 949.

11. I have heard the learned counsel for the parties and considered the matter.

12. Section 561-A of the State Code of Criminal Procedure, which is pari materia to the Central Code of Criminal Procedure, provides that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such order as may be necessary to give effect to any orders under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While exercising powers under Section 561-A of the Cr. P.C. the Court, however, has to keep in mind that it should not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, the accusation would not be sustained. This is the function of the Trial Court. Though the judicial process should not be an instrument of oppression or needless harassment but the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances in consideration before issuing process under Section 561- A, lest the Section becomes an instrument in the hands of accused persons to claim the differential treatment only because the accused persons can spend money to approach higher forums. This Section is not an instrument handed 561-A No. 295/2017 Page 11 of 15 MP No. 01/2017 over to an accused to short circuit a prosecution and bring about its sudden death.

13. It is not impertinent to mention here that it has been emphasized times without number through authoritative judicial pronouncements that inherent powers under Section 561-A Cr.P.C. are to be exercised rarely, sparingly and with due circumspection. The power cannot be used to stifle investigation or even prosecution as the law is to be allowed to have its own course and the investigation or prosecution to be taken to its logical end. A very limited scope is available to find out as to whether the case falls within broader parameters as provided and envisaged under Section 561-A Cr. P.C.

14. The Supreme Court in State of Haryana v. Bhajan Lal AIR 1992 SC 604 as also in the cases reported as AIR 1992 SC 892, AIR 1996 SC 309, AIR 1996 SC 2983, AIR 1999 SC 3596, AIR 1999 SC 1044, AIR 1999 SC 1216, AIR 2002 SC 671, AIR 2004 SC 3967, AIR 2005 SC 3212, SLJ 2005 (I) 118: 2004 (3) JKJ 609 [HC], 2008 AIR SCW 1003, 2008 AIR SCW 1993, 2008 AIR SCW 1998, 2008 AIR SCW 4614, 2008 AIR SCW 7680, 2008 AIR SCW 2778, AIR 2010 SC 201, has discussed the scope of the Section 561-A Cr. P.C. corresponding to the Section 482 Cr. P.C. of Central Code and has laid down the following tests:

a. 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;

b. where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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;

c. 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;

d. 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;

e. 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;

f. where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

g. 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.

15. The Supreme Court has also held in Bhajan Lal's case (supra) that the power of quashing the criminal proceedings should be exercised very sparingly. Paragraph 109 thereof is profitable to be reproduced hereunder:

"109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or 561-A No. 295/2017 Page 13 of 15 MP No. 01/2017 inherent powers do not confer any arbitrary jurisdiction on the court to act according to its whim or caprice."

16. In Som Mittal v. Govt. of Karnataka 2008 AIR SCW 1003, and M.N. Ojha v. Alok Kumar Srivastav AIR 2010 SC 201, while laying down the tests, the Supreme Court has held that the remedy under Section 561-A Cr.P.C and the inherent power should not be exercised by the Courts in a routine manner, rather should be exercised sparingly, carefully with caution and in the rarest of the rare cases. The Court has not to function as a court of the appeal or the revision.

17. This Court in a case Mian Abdul Qayoom v. State & ors. 2011 (I) JKJ 470 (HC) has held that the Court should refrain from making prima facie decision at the infancy stage or in a case where all the facts are incomplete and hazy.

18. It may not be out of place to mention here that inherent power cannot be naturally invoked in respect of any matter covered by a specific provision of the Code. It is only after the High Court is satisfied that either an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured, then the High Court must exercise its inherent powers under Section 561-A Cr. P.C. This power can be invoked only in an event when aggrieved party is unnecessarily harassed and has no other remedy open to it. The power under section 561-A is not intended to scuttle justice but to secure justice. In the present case, the matter 561-A No. 295/2017 Page 14 of 15 MP No. 01/2017 pending trial before the court below is at the infancy stage and therefore, need not be interfered with.

19. Applying the aforesaid test, the petition is bereft of merit and the petitioner fails to make out a case for exercise of the inherent powers under Section 561-A Cr. P.C. to quash the Final Report qua petition and the criminal proceedings emanating on the basis of the Final Report. Having said so, petition on hand is dismissed with connected MP(s). Interim direction, if any, shall stand vacated.

( M. K. Hanjura ) Judge Srinagar 27.09.2018 Ajaz Ahmad 561-A No. 295/2017 Page 15 of 15 MP No. 01/2017