Jammu & Kashmir High Court - Srinagar Bench
Mohammad Shafi Rather vs Union Of India And Another on 22 July, 2020
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
Supplementary Cause List
Sr. No.1
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conference)
Reserved on : 15.07.2020
Pronounced on: 22.07.2020
WP(C) No. 1045/2020
CM No. 2458/2020
Mohammad Shafi Rather .....Petitioner (s)
Through :- Mr. Salih Pirzada, Advocate
(on Video Conference from residence at Srinagar)
V/s
Union of India and another .....Respondent(s)
Through :-
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
1. Through the medium of instant writ petition, the petitioner has sought the following reliefs:-
i. By a writ of Mandamus -
The second proviso to Section 17 of the Prevention of Corruption Act, 1988 be declared ultra vires.
ii. By a writ of Certiorari -
FIR No. 07/2020 dated 08.06.2020 registered at Police Station, Crime Branch Kashmir, for the offences under Sections 420, 409, 120-B Indian Penal Code read with Section 13 of the Prevention of Corruption Act, 1988 may be quashed.
2 WP(C) No. 1045/2020
2. The brief facts are that the Police Crime Branch has registered FIR bearing No.07/2020 dated 08.06.2020 for commission of offences under Section 420, 409, 120-B IPC read with Section 13 of the Prevention of Corruption Act, 1988 on the complaint lodged by Directorate of Food, Civil Supplies & Consumer Affairs (FCS & CA). In the complaint it is alleged that some inputs have been received indicating misappropriation of food grains (Rice) from the granaries of Hygam and Baramulla (Centre D) and pursuant to that a Joint Surprise Check (JSC) of the said location for ascertaining the factual position was conducted. During the JSC it has come to the fore that 07 trucks loaded with rice, registration numbers mentioned in the FIR have been shown as dispatched from Private Enterprise Godown (PEG), Baramulla under the supervision of FCI officers/officials through Tehsil Supply Officer (TSO), PEG, Baramulla, FCS & CA. The same have been shown received by the Hygam Granary, Baramulla, who has acknowledged it by issuing separate challans in respect of sale centres mentioned in FIR under TSO, Circle D, Baramulla. However, the receipt of said dispatches has been negated by the sale centres and also by the relevant records of account section of Directorate of FCS & CA, Kashmir. During the preliminary questioning of one of the truck drivers it is revealed that these dispatches have never been issued from the PEG, Baramulla, therefore, it is evident that TSO PEG, Baramulla and TSO Hygam of FSC & CA, Kashmir have showed these dispatches only on papers and no actual transaction has taken place. The JSC also revealed that these challans have actually been obtained by the Assistant Storekeeper, Pahallan Pattan, Mohd Shafi Rather from one, Siraju Din Bhat, TSO PEG, Baramulla. 3 WP(C) No. 1045/2020 Assistant Storekeeper Pahallan Pattan, Mohammad Shafi Rather, has also subsequently managed challans in respect of trucks mentioned in the FIR from TSO Hygam, Mohammad Hussain Bhat, S/o Abdul Rahim Bhat, R/o Kitchoo, Handwara. Acting in the aforesaid manner, the aforesaid officers/officials after hatching a criminal conspiracy with each other and also with the employees of FCI, Baramulla have misappropriated 633.14 Qtls of rice, thereby causing pecuniary loss to the State exchequer. Further, the concerned Assistant Director, FCS & CA Baramulla, Kashmir has remained criminally silent over the matter and facilitated this misappropriation. The commission on the part of the said officers/officials in league with the employees of FCI, Baramulla has caused loss to the State exchequer to the tune of Rs. 9,49,710.00. On the basis of the said complaint, FIR mentioned above was registered and investigation was initially handed over to Inspector Mubarak Shah.
3. The petitioner has challenged the impugned FIR bearing No. 07/2020 dated 08.06.2020 on the ground that same is being investigated without following the mandate of Section 17-A of Prevention of Corruption Act 1988 and also that he was on leave when some irregularities are alleged to have been noticed regarding the carriage of food grains taken place on 31.12.2019. The petitioner has also challenged the validity of proviso, appended to Section 17 by virtue of which the Inspector of Police can be authorized by the State Government by general or special order to investigate the case under the PC Act on the ground that the said proviso is contrary to the spirit of main Sec 17 of the Act(supra).
4 WP(C) No. 1045/2020
4. Heard learned counsel for the petitioner and perused the record meticulously.
5. Learned counsel for the petitioner has vehemently argued that no investigation could have been undertaken by the respondent no:2 for commission of any offence under the PC Act without the previous approval of the Government. It would be profitable to reproduce the relevant portion of Section 17-A of the PC Act, which is as under:-
"17-A. Enquiry or Inquiry or investigation of offences relatable in recommendation made or decision taken by public servant in discharge of official functions or duties.
(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval--
(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:
Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:5 WP(C) No. 1045/2020
Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month."
6. The bare perusal of sec. 17-A of the PC Act reveals that no enquiry or inquiry or investigation of offence in connection with the recommendation made or decision taken by public servant in discharge of official functions or duties being performed by him with Union or State Government can be conducted without the prior approval of the Union or State Government, as the case may be. The purpose of Section 17-A of the Act (supra) is only to provide protection to the public servants who discharge their official duties fairly in an unbiased manner and without any motive for their personal advantage or favour so that they do not remain under the constant apprehension that decisions taken or recommendations made by them would be susceptible to Police investigation or enquiry just on the basis of false complaint made with malice or for some other ulterior purpose by anyone. Rather this proviso weeds out the false complaints actuated with malice or made with ulterior motives by unscrupulous persons with regard to the decisions taken or recommendations made by a public servant at the level of Employer/Government only before they reach the Police Investigating Agencies for enquiry/inquiry/investigation. This proviso also serves the purpose of reducing the burden of Investigating Agencies in dealing with such cases.
7. The allegations in the instant FIR are not with regard to any decision or recommendation made by any Public Servant in discharge of official duties, rather there are serious allegations of misappropriation of food 6 WP(C) No. 1045/2020 grains worth Lacs of Rupees. There is no allegation against the petitioner that either the petitioner has made any recommendation or has taken any decision in discharge of his official duties for which FIR is being investigated, therefore Section 17-A of the PC Act has no application in the instant case.
8. The second contention raised by the petitioner is that proviso attached to Section 17 authorizes Inspector of Police to investigate the offences under the PC Act after being authorized by the State Government in this behalf by a general or special order is ultra-vires to the main section. The plain reading of sec 17 of the Act (supra) reveals that not only the designated officers can investigate the offence under the Act but also the officers below the rank of the designated officer can investigate the offence under the Act with the order of the Metropolitan Magistrate or Magistrate of 1st Class as the case may be. The only difference is that where the designated officers can investigate without any order from the Metropolitan Magistrate or Magistrate of 1 st Class but in case of officers below the rank of designated officers, the investigation can be undertaken only with the order of Metropolitan Magistrate or Magistrate of 1 st Class as the case may be. So once the Metropolitan Magistrate or Magistrate of 1st Class Magistrate as the case may be, can permit the investigation by an officer below the rank of designated officer, so the authorization by the State Government general or special in favour of an officer not below the rank of Inspector to investigate offence under the Act, can never be termed as illegal or ultra-vires of the main section. More so, the petitioner had raised this plea as the investigation was initially handed over to Inspector Mubarak Shah, but the perusal of Annexure-III (letter dated 16.06.2020) that has been placed on record by none else other than the petitioner himself, clearly reveals that the matter is 7 WP(C) No. 1045/2020 being investigated by Imtiyaz Ahmed, Dy. SP of Crime Branch. As such none of the rights of the petitioner have been violated. More so, the accused cannot have any say, as to who should investigate the matter and it is the sole prerogative of the Government to authorize any police officer not below the rank of Inspector of Police to investigate the offences under the PC Act as per the proviso. The only right of the accused is to have fair investigation. The said proviso nowhere adversely affects the right of the petitioner, particularly in view of the fact that the FIR in question is being investigated by the Dy. SP of the Crime Branch, who falls within the category of the designated Officer to investigate the offence under the Act, so the petitioner cannot have any grievance of the violation of sec 17 of the Act (supra). Thus the proviso to sec 17 of the PC Act is not ultra-vires.
9. The last contention of the petitioner is that no offences under Section 409 and 420 I.P.C are made out against the petitioner, as the petitioner was on leave on the day when the alleged irregularities had been committed. Whether the petitioner was on leave or not and further that he was not having any dominion over the property falls within the realm of investigation, that cannot be considered by this Court while adjudicating upon the writ petition. Though the quashing of FIR has been sought by invoking the extra ordinary jurisdiction of this Court but the principles for quashing FIR as laid down by Apex Court are equally applicable while exercising inherent power under sec 482 Cr.P.C. or the extraordinary power under Article 226 of the Constitution. Otherwise also, the investigation is in its infancy, as the FIR has been registered only on 08.06.2020 and it is settled law that when the investigation has just begun the same cannot be quashed. Reliance is placed upon the decision of 8 WP(C) No. 1045/2020 Apex Court incase titled "Monica Kumar (Dr.) v. State of U.P.," reported in (2008) 8 SCC 781 and the relevant para is reproduced as under:
"36. We may reiterate and emphasize that the powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage."
10. Reliance is also placed upon the decision of Apex Court in case titled "Tilly Gifford v. Michael Floyd Eshwar," reported in (2018) 11 SCC 205 and the relevant para is reproduced as under:
"3. A perusal of the order of the High Court released on 21-5- 2015 would indicate that the High Court has gone far beyond the contours of its power and jurisdiction under Section 482 Cr.P.C. to quash a criminal proceeding, the extent of such jurisdiction having been dealt with by this Court in numerous pronouncements over the last half century. Time and again, it has been emphasized by this Court that the power under Section 482 Cr.P.C. would not permit the High Court to go into disputed questions of fact or to appreciate the defence of the accused. The power to interdict a criminal proceeding at the stage of investigation is even more rare. Broadly speaking, a criminal 9 WP(C) No. 1045/2020 investigation, unless tainted by clear mala fides, should not be foreclosed by a court of law."
11. In view of the above, this petition is found to be without any merit and is, accordingly, dismissed along with connected application. Registry is directed to send the copy of the order to the learned counsel for the petitioner as well as respondent No. 2.
(RAJNESH OSWAL) JUDGE SRINAGAR 22.07.2020 (Muneesh) Whether the order is speaking : Yes Whether the order is reportable : Yes / No MUNEESH SHARMA 2020.07.22 13:34 I attest to the accuracy and integrity of this document