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Jammu & Kashmir High Court - Srinagar Bench

Hamid Ahmad Wani vs State Of J&K; & Others on 16 October, 2018

Author: M. K. Hanjura

Bench: M. K. Hanjura

            HIGH COURT OF JAMMU AND KASHMIR
                      AT SRINAGAR
                            ...

561-A no.187/2016 MP no.01/2016 c/w 561-A no.25/2017 MP no.01/2017 Date of order: 16.10.2018 Hamid Ahmad Wani v. State of J&K and others Mir Naseem Ahmad v. State of J&K and others Coram:

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

For Petitioner(s): Mr R. A. Jan, Senior Advocate with Ms Sadaf Amin, Advocate For Respondent(s): Mr M. A. Rathore, AAG Mr Z. A. Shah, Senior Advocate Whether approved for reporting? Yes

1. Challenge in the petitions on hand is thrown to the Order dated 6th February 2016, passed by the court of learned the Additional Sessions Judge (Special Judge Anticorruption), Anantnag (for brevity the "Trial Court") directing the framing of the charge against the petitioners under Section 5 (1) (d) read with Section 5 (2) of the J&K Prevention of Corruption Act, 2006 rad with Section 120-B RPC, along with consequential criminal proceedings initiated against the petitioners in pursuance thereto in a case FIR no.276 of 2008, on the grounds outlined therein.

2. The case set up by both the petitioners in the instant petitions, is that the respondent Vigilance Organisation on the basis of the information claimed to have been received by it, registered a case FIR no.27 of 2008 on 11th August 2008. Pursuant thereto, the investigation was conducted which culminated into the 561-A no.187/2016 Page 1 of 31 c/w 561A no.25/2017 Final Report as envisaged under Section 173 of the Code of Criminal Procedure, submitted on 2nd July 2011, by the respondent Vigilance Organisation initially to the court of the learned Special Judge Anticorruption, Kashmir, Srinagar, wherefrom it was transferred to the files of the learned Trial Court for disposal in accordance with law.

3. The petitioner in petition bearing 561-A no.287/2016 states that the Town Planning Organisation, of which the petitioner, at the relevant point of time, was a member holding the position/post of Town Planner, is not the part of the Pahalgam Development Authority and the role of the Town Planning Organisation, a body expert having the expertise in the field of Country/Town Planning, is primordial in the sense that at the request/instance of the Development Authority it draws and provides to the Development Authority the proposed plan in draft to facilitate the job and task of drawing a Master Plan entrusted to the Development authority under the Statute, namely, the Development Act. It is maintained that the petitioner has been roped in merely because he was the part/member of the Team called upon to draw the aforementioned Proposed Plan in Draft. According to the petitioner, the records testify to the fact that all that the petitioner was called upon to do as a member of the Team, was only to draft a report, based on the above proposed Draft Plan. Petitioner also avers that he has been roped in without any warrant, authority or sanction of law and that the 561-A no.187/2016 Page 2 of 31 c/w 561A no.25/2017 allegations as disclosed in the Final Report against the petitioner do not, on the face of them, disclose or make out any case warranting framing of charge against the petitioner under Section 5(1) (d) read with Section 5(2) of the J&K Prevention of the Corruption Act, 2006, and Section 120-B RPC, as directed by the learned Trial Court vide impugned order dated 6th June 2016. It is also pleaded that the preparation / drawing of the Master Plan is a Statutory exercise entrusted to a Statutory Authority called the Development Authority, constituted under Section 3 of the Development Act for an area declared to be a local area and that even the method and manner for preparing/drawing of the Master Plan for a local area is statutorily prescribed. In terms of SRO 118 of 1990 dated 267th March 1990, issued under the Development Act, 1970, the Pahalgam Development Authority was constituted for an area, declared to be the local area for the purposes of the Development Act. It is also contended that by SRO 73 of 2003 dated 6th March 2003, in supersession to SRO 197 of 1992 dated 24th August 1992, the Pahalgam Development Authority came to be reconstituted.

The position that emerges from the said SRO, according to the petitioner, is that before preparing any Plan finally and submitting it to the Government for the approval, the Authority is required to prepare a Plan in Draft and publish it by making a copy thereof available for inspection and publishing notice in the prescribed form and manner inviting 561-A no.187/2016 Page 3 of 31 c/w 561A no.25/2017 objections and suggestions from all concerned with respect to the Draft Plan before such date as may be prescribed. The SRO 73 of 2003, it is next averred, also provides that after considering all the objections, suggestions and representations that have been received by the Authority, the Authority shall finally prepare the Plan and submit it to the government for its approval and the preparation/drawing of the Master Plan for an area declared as local area under the Development Act, falls and is, thus, within the exclusive domain and province of the Development Authority constituted therefor. The Master Plan prepared and drawn by the Development Authority on due observance of the procedure statutorily prescribed, becomes enforceable in law only on being approved by the Government at the Cabinet Level, followed by the Statutory Notification required to be issued as per the mandate of Section 11 of the Development Act by the Government, declaring the area for which the Master Plan has been approved and indicating the approval of the Master Plan and the date of its operation and the name of the place where a copy of the Plan may be inspected at all reasonable hours. Even in the matter of modification, be it to the Master Plan or the Zonal Plan insofar as it does not affect important alterations in the character of the Plan and which do not relate to land use etcetera, the power and authority vests in the Development Authority. He also maintains that in case of alteration/modification to the Master Plan or the 561-A no.187/2016 Page 4 of 31 c/w 561A no.25/2017 Zonal Plan affecting the important alterations including the change of the land uses or the standards of the population density, the power and the authority vests exclusively in the Government, of course, to be effected only after due observance of the procedure as by the law prescribed under and in terms of the Sub-sections 3 to 5 of Section 12 of the J&K Development Act, 1970. Petitioner states that before the advent of the approved Master Plan 2005-2015, there did not exist nor has there been any approved Master Plan for Pahalgam Town. The Master Plan 2005-2015 was the first approved Master Plan ever made for Pahalgam, the change of the land use and/or the denotification as alleged against the petitioner in the FIR/Final Report is totally imaginary/ illusory and non-existent, for, as demonstrably shown, the power and authority to issue the Statutory Notifications including the Notification, notifying the change of land use vests exclusively in the Government and can be issued by the Government only and none else. The Government Order no.32-TSM of 2004 dated 27th January 2004, testify to the fact that the Government before according approval to the Master Plan finally prepared by the Authority and submitted to it for its approval, a Committee of the Officers was constituted comprising of Divisional Commissioner, Kashmir, Srinagar as the Chairman; Chief Engineer R&B Kashmir; Chief Executive Officer Pahalgam Development Authority and Chief Town Planner, Kashmir, as its Members, with a mandate to 561-A no.187/2016 Page 5 of 31 c/w 561A no.25/2017 examine/consider the objections received from general public for Draft Master Plan, Pahalgam and to make, on examining/ considering the objections received, recommendations to the Pahalgam Development Authority, for consideration and finalization of the Master Plan. It is averred that Government Order no.32-TSM of 2004 dated 27th January 2004, testifies to the fact that on consideration of the recommendations made by the Committee of the Officers on the examination/ consideration of the objections/suggestions that the Draft Master Plan was displayed for the objections from the general public in terms of Section 10(1) and 41 of J&K Development Act, 1970, and was approved by the Government along with the recommendations made by the above Committee. Before according the requisite approval to the Final Master Plan prepared by the Pahalgam Development Authority, the Government had got the same examined by a Cabinet Sub Committee, headed by the then Deputy Chief Minister and it was only after the Cabinet Sub Committee had entered the satisfaction qua the fact that while drafting the Master Plan, the imperative of the ecology and the needs of the wholesome environs had been duly addressed and fully met, that Master Plan prepared finally by the Development Authority was approved by the Competent authority, namely, the Government. It is claimed that as regards the allegation against the petitioner in the Final Report that in the year 2005, the petitioner purchased the land measuring 03 Kanals and 18 561-A no.187/2016 Page 6 of 31 c/w 561A no.25/2017 Marlas in the name of his wife, is also totally imaginary, illusory debased and falsified completely by the unimpeachable official record establishing that the wife of the petitioner is in the public/government employee, serving as Statistical Officer in the Directorate of Economics and Statistics and, therefore, she, being financially resourceful and not dependent upon the petitioner, bought the aforesaid landed property out of her personal resources, after having obtained the requisite permission for its purchase. It is also averred that since in law the reason to suspect commission of an offence is the sine qua non for setting the criminal law into motion, therefore, the primordial exercise undertaken by the Town Planning Organisation in preparing the proposed plan cannot be fastened on the petitioner inasmuch as it is only after the approval is granted by the Government that the notification under Section 11 of the Development Act is being issued and as a consequence of which the Master Plan, prepared for a local area, comes into existence.

4. The petitioner in petition, bearing 561-A no.25/2017 has stated that that he has retired from service on superannuation with effect from 30th April 2008 as vice Chairman, Jammu and Kashmir Lakes and Water Ways Development Authority. Besides the above position, the petitioner maintains that he had also held the post of Chief Town Planner, Kashmir, since the year 1990. The petitioner avers that the Town Planning Organization, Body Expert, having expertise in the field of 561-A no.187/2016 Page 7 of 31 c/w 561A no.25/2017 country/Town Planning, is primordial in the sense that at the request/instance of the Development Authority it draws and provides to the Development Authority the proposed plan in draft to facilitate the job and task of drawing a Master Plan entrusted to the Development authority under the Statute, namely, the Development Act. It is maintained that the petitioner has been roped in merely because he was the then Chief Town Planner, heading the Team of Town Planner, called upon to draw the Proposed Plan in Draft. The petitioner also claims that the records testify to the fact that all that the petitioner was called upon to do as a member of the Team, was only to draft a report, based on the above proposed Draft Plan. The petitioner avers that he has been roped in without any warrant, authority or sanction of law and that the allegations as disclosed in the Final Report against the petitioner do not, on the face of them, disclose or make out any case warranting framing of charge against the petitioner under Section 5(1) (d) read with Section 5(2) of the J&K Prevention of the Corruption Act, 2006, and Section 120-B RPC, as directed by the learned Trial Court vide impugned order dated 6th June 2016. It is pleaded that the preparation / drawing of the Master Plan is a Statutory exercise entrusted to a Statutory Authority called the Development Authority, constituted under Section 3 of the Development Act for an area declared to be a local area and that even the method and manner for preparing/drawing of the Master Plan for a local 561-A no.187/2016 Page 8 of 31 c/w 561A no.25/2017 area is statutorily prescribed. In terms of SRO 118 of 1990 dated 267th March 1990, issued under the Development Act, 1970, the Pahalgam Development Authority was constituted for an area, declared to be the local area for the purposes of the Development Act. It is also contended that by SRO 73 of 2003 dated 6th March 2003, in supersession to SRO 197 of 1992 dated 24th August 1992, the Pahalgam Development Authority came to be reconstituted. The position that emerges from the said SRO, according to the petitioner, is that before preparing any Plan finally and submitting it to the Government for the approval, the Authority is required to prepare a Plan in Draft and publish it by making a copy thereof available for inspection and publishing notice in the prescribed form and manner inviting objections and suggestions from all concerned with respect to the Draft Plan before such date as may be prescribed. The SRO 73 of 2003, it is next averred, also provides that after considering all the objections, suggestions and representations that have been received by the Authority, the Authority shall finally prepare the Plan and submit it to the government for its approval and the preparation/drawing of the Master Plan for an area declared as local area under the Development Act, falls and is, thus, within the exclusive domain and province of the Development Authority constituted therefor. The Master Plan prepared and drawn by the Development Authority on due observance of the procedure statutorily prescribed, becomes 561-A no.187/2016 Page 9 of 31 c/w 561A no.25/2017 enforceable in law only on being approved by the Government at the Cabinet Level, followed by the Statutory Notification required to be issued as per the mandate of Section 11 of the Development Act by the Government, declaring the area for which the Master Plan has been approved and indicating the approval of the Master Plan and the date of its operation and the name of the place where a copy of the Plan may be inspected at all reasonable hours. Even in the matter of modification, be it to the Master Plan or the Zonal Plan insofar as it does not affect the important alterations in the character of the Plan and which do not relate to the land use etcetera, the power and the authority vests in the Development Authority. He also maintains that in case of alteration/modification to the Master Plan or the Zonal Plan affecting the important alterations including the change of the land uses or the standards of the population density, the power and the authority vests exclusively in the Government, of course, to be effected only after due observance of the procedure as by the law prescribed under and in terms of the Subsections 3 to 5 of Section 12 of the J&K Development Act, 1970. Petitioner states that before the advent of the approved Master Plan 2005-2015, there did not exist nor has there been any approved Master Plan for Pahalgam Town. The Master Plan 2005-2015 was the first approved Master Plan ever made for Pahalgam, the change of the land use and/or the denotification as alleged against the petitioner in the 561-A no.187/2016 Page 10 of 31 c/w 561A no.25/2017 FIR/Final Report is totally imaginary/ illusory and non- existent, for, as demonstrably shown, the power and authority to issue the Statutory Notifications including the Notification, notifying the change of land use vests exclusively in the Government and can be only issued by the Government and none else. The Government Order no.32-TSM of 2004 dated 27th January 2004, testify to the fact that the Government before according approval to the Master Plan finally prepared by the Authority and submitted to it for its approval, a Committee of Officer was constituted comprising of Divisional Commissioner, Kashmir, Srinagar as Chairman; Chief Engineer R&B Kashmir, Chief Executive Officer Pahalgam Development Authority and Chief Town Planner, Kashmir, as its Members, with a mandate to examine/ consider the objections received from general public for Draft Master Plan, Pahalgam and to make, on examining/ considering the objections received, recommendations to the Pahalgam Development Authority, for consideration and finalization of the Master Plan. It is averred that Government Order no.32-TSM of 2004 dated 27th January 2004, testifies to the fact that on consideration of the recommendations made by the Committee of the Officers on the examination/ consideration of the objections/suggestions that the Draft Master Plan was displayed for the objections from the general public in terms of Section 10(1) and 41 of J&K Development Act, 1970, and was approved by the Government along with 561-A no.187/2016 Page 11 of 31 c/w 561A no.25/2017 the recommendations made by the above Committee. Before according the requisite approval to the Final Master Plan prepared by the Pahalgam Development Authority, the Government had got the same examined by a Cabinet Sub Committee, headed by the then Deputy Chief Minister and it was only after the Cabinet Sub Committee had entered the satisfaction qua the fact that while drafting the Master Plan, the imperative of the ecology and the needs of the wholesome environs had been duly addressed and fully met, that Master Plan prepared finally by the Development Authority was approved by the Competent authority, namely, the Government. It is also averred that since in law the reason to suspect commission of an offence is sine qua non for setting the criminal law into motion, therefore, the "reason to suspect commission of an offence would mean the sagacity of rationally inferring the commission of a cognizable offence based on the specific articulate facts mentioned in the First Information Report as well as the documents/annexures constituting the integral part thereof, the very sine quo non for setting the criminal law into motion, which in the present case is totally non-existent rendering in sequel thereto not only the impugned order dated 6th February 2016, directing framing of charge against the petitioner for alleged the commission of offence punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 120-B RPC, and the impugned prosecution initiated/commenced against the 561-A no.187/2016 Page 12 of 31 c/w 561A no.25/2017 petitioner in pursuance thereto but also the very foundation thereof, namely FIR no.27/2008, without any basis and/or warrant or authority in law violating with impunity the very mandate of the Constitutional guarantees available to the petitioner under Article 14 and 21 of the Constitution of India, constituting on the face of it grave abuse of the process of the law and therefore, unsustainable in law.

5. I have heard the learned counsel for the parties. I have gone through the record and considered the matter.

6. The case FIR no.27/2008 was registered by the respondent Vigilance Organisation on 11th August 2008, wherein it is alleged that:

"A joint surprise check was conducted into the allegations of abuse of official position by the officials of Town Planning, Organization, Kashmir, resulting into conferment of undue benefit upon themselves while making mischievously change of land use relating to land falling under Planning Sub Zone A-14 of Master Plan Pahalgam.

The surprise check revealed that a committee comprising Shri Mir Naseem Ahmad, then Chief Town Planner, Hamid Ahmad Wani, the then Town Planner and Nazir Ahmad Magrey, then Assistant Town Planner was constituted in the year 2004 to prepare Mater Plan (2005-2025) of Pahalgam. The Members of the Committee had resorted to misrepresentation, manipulations and distortions whereby it was inter alia proposed that Sub Zone A-14 be denotified to permit the construction of hutments and other facilites in the Mater Plan of Pahalgam Town (2005-2025). This was aimed at achieving the mischievous design for personal gain of accused public servant Shri Mir Naseem Ahmad to induce a sharp increase in the cost of land. It was found that planning Sub Zone A-13 having sizeable population already residing and being contiguous with already denotified area was wilfully ignored to the denotified instead of which, for personal gains, Sub Zone A-14 inaccessible and situated on the other side of Sheshnag Nallah of River Lidder was recommended with criminal intent for de-notification.

It was found that as a part of criminal conspiracy the information relating to proposed de-notification of Sub Zone A-14 was wilfully omitted by the members of drafting committee from the draft master plan which was made available to public for filing objections. The Govt. approved the Master Plan in the year 2006 after having been misled about the need for change of land use in Sub Zone A-14 and after deceitfully depriving of the public from raising objections in the matter."

7. On the basis of the FIR no.27/2008, the investigation was set in motion and the Final Report was produced before the learned Trial Court. On 6th February 2016, the learned Trial Court framed the charge against the petitioners.

8. Learned counsel for petitioners has taken this Court to various provisions of the Development Act, to contend that the Development Act sets at rest what has been alleged against the petitioners in the FIR no.27/2008, and in the Final Report, filed by the respondent Vigilance Organisation before the learned Trial Court, which resulted in passing of the impugned order dated 6th February 2016, framing the charge against the petitioners. He has vehemently stated that notification and denotification of any area is not within the domain or competence of the persons, like the petitioners herein, inasmuch as the authority to do so exclusively vests in the Government. Learned senior counsel has also stated, and rightly so, that the allegation against the petitioner in 561-A no.187 of 2016, that he in the year 2005 purchased the land measuring 03 Kanals and 18 Marlas in the name of his wife, is also totally imaginary, illusory debased and falsified 561-A no.187/2016 Page 14 of 31 c/w 561A no.25/2017 completely by the unimpeachable official record establishing that the wife of the petitioner is in the public/government employee, serving as Statistical Officer in the Directorate of Economics and Statistics and, therefore, she, being financially resourceful and not dependent upon the petitioner, bought the aforesaid landed property out of her personal resources, after having obtained the requisite permission for its purchase from the competent authority. Once that being the position, the aforesaid allegation, in view of the permission granted by the competent authority in favour of the wife of the petitioner, is specious and hollow.

9. In the backdrop of the above discourse, it is imperative to have bird's eye view of the Jammu and Kashmir Development Act, 1970 (for short the "Act of 1970"). It has come into being on 31st of October 1970, aiming at providing the development of the State according to the plan and for the matters ancillary thereto. The "Local area" within the meaning of the Subsection

(e) of the Section 2 of the Act is any area declared to be a local area under Subsection (1) of Section 3. This takes us to see how and who can declare any area as "Local area" within the meaning of Section 2(e) of the Act of 1970. Section 3 envisions that as soon as may be after the commencement of the Act of 1970, the Government may, by notification in the Government Gazette, declare any area to be the "Local area" for the purpose of the Act of 1970 and constitute therefor an authority to be called the Development Authority and the Authority shall be 561-A no.187/2016 Page 15 of 31 c/w 561A no.25/2017 the body corporate by the name of the Local Area having perpetual succession and common seal with the power to acquire, hold and dispose of the property, both movable and immovable, and to contract and shall in the said name sue and be sued. Section 3, thus, unequivocally envisages that it is the Government that has domain and authority to declare any area as "Local Area". Chapter III of the Act of 1970 relates to "Master Plan and Zonal Development Plans". Section 7 thereof postulates that an Authority shall, as soon as may be, carry out a civic survey of and prepare a master plan for the Local Area for which it is constituted. The Master Plan shall define the various zones into which the "Local Area" may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by carrying out thereon the development or otherwise) and the stages by which any such development shall be carried out; and the Msater Plan shall also serve as a basic pattern of the framework, which the zonal development plans of the various zones of the Local Area, may be prepared. As soon as may be after preparation of every Master Plan and Zonal Plan, the same, as stipulated by Section 9 of the Act of 1970, is to be submitted by the Authority to the Government along with a proposal relating to the date of the operation of the zonal plan. Here it is important to be seen what Section 9 says. It explicitly enjoins exclusive dominance and competence of the Government and not that of any officer/official, at any 561-A no.187/2016 Page 16 of 31 c/w 561A no.25/2017 position, "either to approve the plan and the proposal without modification or with such modifications as it may consider necessary or reject the plan" with directions to the authority to prepare a fresh plan according to such directions. The "approval of the plan" for declaring any area as a "Local Area" under the umbrella of the Act of 1970, is, therefore, the exclusive prerogative of the Government and not that of the officer/ official of any Authority, here in the present case petitioners. In such circumstances, the vituperations levelled against the petitioners by respondent Vigilance Organisation as regards declaration of any area as "Local Area" is specious and without any edifice in view of the auspices of the Act of 1970.

10.Section 10 of the Act clearly says that before preparation of the Master Plan, a Plan in Draft is to be prepared and published and a copy thereof is to be made available for the inspection and a notice is to be published inviting the objections and suggestions from any person vis-à-vis the draft plan before such date as may be specified in the notice. Not only this, the reasonable opportunity is to be given to every local authority within whose local limits any land touched by the plan is situated to make any representation with respect to the plan and after considering all the objections, suggestions and representations that may have been received by the Authority, the Authority shall finally prepare the plan and submit it to the Government for its approval. As iterated herein above, mere submission of the draft Master Plan, does 561-A no.187/2016 Page 17 of 31 c/w 561A no.25/2017 not amount to accord of the approval by the Government. The matter does not clinch here a lot is in the offing requiring discussion.

11.SRO 118 of 1990 dated 26th March 1990 has notified the constitution of the Pahalgam Development Authority for the local areas declared vide Notification/SRO 444 dated 3rd August 1978 read with Notifications/SROs 277 and 191 dated 22nd June 1984 and 15th may 1989 respective. SRO 118 provided that His Excellency the Governor would be the Chairman of the Pahalgam Development Authority. However, by virtue of SRO 73 of 2003 dated 6th March 2003, in supersession to earlier SROs, the Chief Minister has been declared as Chairman of the Pahalgam Development Authority. The Tourism Minister; Financial Commissioner/ Secretary to Government, Finance Department; Principal Secretary / Secretary to Government, Planning and Development Department; Secretary to Government, Tourism Department; Divisional Commissioner, Kashmir; Deputy Commissioner, Anantnag; and Chief Executive Officer, Pahalgam Development Authority, shall be the Members of the Pahalgam Development Authority. Again, the accord of the approval to the draft Plan vis-à-vis subject matter of the present case, was not the authority of the petitioners, but that of the Government.

12.The learned counsel for the petitioners has also invited attention of this Court to the Government Order no.32-TSM of 561-A no.187/2016 Page 18 of 31 c/w 561A no.25/2017 2004 dated 27th January 2004, to contend that the subject- matter of the case FIR no.27/2008, has been put at rest by the said government order inasmuch as the sanction had been accorded to the constitution of a Committee of the officers, headed by Divisional Commissioner, Kashmir, to examine/ consider the objections received from the general public for the Draft Master Plan with respect to Pahalgam. The Committee, headed by the Divisional Commissioner, Kashmir, as he then was, in terms of the aforesaid Government Order had been asked that after examining the objections/suggestions, he would make recommendations to the Pahalgam Development Authority for consideration and finalization of the Master Plan. It were not the petitioners, who had the upper hand to get the Master Plan finalised or say approved from the Government. Such concept and/or chronicle of respondent Vigilance Organisation envelopes under dwarf the competence and the dominance of the Government, for, it is and was wholly and solely the Government to accord the sanction and the approval to a proposal, including the one in the present case for declaring a particular area as "Local Area", that is/was mooted by any official, including the present petitioners. Having said that, the very edifice of the case and the proceedings sprang therefrom in law, are ruined in character and quality and are, therefore, liable to be set at naught.

13.It is well settled legal position that if, upon the consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. The words 'not sufficient ground for proceeding against the accused' clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.

14.In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of framing of charge, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.

15.The Supreme Court in the case of State of Bihar v. Ramesh Singh, (1978) 1 S.C.R. 287, where Untwalia, J. speaking for the Court, observed as follows:

"Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence; if any, cannot show that the accused committed the offence then there will be no sufficient ground for proceeding with the trial."

16.In the background of above settled position vis-à-vis framing of charge or discharge of an accused, it emerges that: the Judge while considering the question of framing the charges under the Code, has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial; the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion 561-A no.187/2016 Page 21 of 31 c/w 561A no.25/2017 against the accused, he will be fully within his right to discharge the accused; in exercising his jurisdiction under the Code of the Criminal Procedure, the Judge which in the present case is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on.

17.Given the discussions made herein above, it is unequivocally clear and evident that the respondent Vigilance Organisation has not been able to make out a prima facie case against the petitioners. Thus, there was no occasion for the learned Trial Court to pass the impugned order dated 6th February 2016.

18.It is germane to mention here that indubitably the judicial process should not be an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing the process or proceeding in a matter, lest it would be an instrument in the hands of initiators as vendetta to harass the persons needlessly.

19.Time and again the scope of the jurisdiction of the High Court under Section 561-A of the J&K Code of Criminal Procedure, which is pari materia to Section 482 of the Central Code of Criminal Procedure, has been examined and several principles which govern the exercise of the jurisdiction of the 561-A no.187/2016 Page 22 of 31 c/w 561A no.25/2017 High Court under Section 561-A of the Code has been laid down. A three-Judge Bench of the Supreme Court in State of Karnataka v. L. Muniswamy and others 1977 (2) SCC 699, has held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In paragraph 07 of the judgment following has been stated:

"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."

20. The judgment of the Court in the State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 482 Cr. P.C. and Article 226 of the Constitution of India in the context of quashing the proceedings in criminal investigation. After 561-A no.187/2016 Page 23 of 31 c/w 561A no.25/2017 noticing various earlier pronouncements, the Supreme Court enumerated certain categories of cases by way of illustration, where the power under Section 482 Cr. P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102, which enumerates seven categories of cases where power can be exercised under Section 482 Cr. P.C. are extracted as follows:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(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 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 561-A no.187/2016 Page 24 of 31 c/w 561A no.25/2017 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 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.

(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."

21. A three-Judge Bench of the Supreme Court in State of Karnataka v. M. Devenderappa and another, 2002 (3) SCC 89, had an occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., the Supreme Court has laid down that the authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that the Court would be justified to quash any proceeding if it finds that the initiation/ continuance thereof amounts to the abuse of the process of the Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6:

"6......All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their 561-A no.187/2016 Page 25 of 31 c/w 561A no.25/2017 constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

22. Further in paragraph 8 following was stated:

"8.....Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (AIR 1992 SC 604)."

23. In Sunder Babu and others v. State of Tamil Nadu, 2009 (14) SCC 244, the Supreme Court was considering the challenge to the order of the Madras High Court, where an Application was under Section 482 Cr.P.C. to quash the criminal proceedings under Section 498A IPC and Section 4 of Dowry Prohibition Act, 1961. It was contended before the Supreme Court that the complaint filed was nothing but an abuse of the process of the law and the allegations were unfounded. The prosecuting agency contested the petition filed under Section 482 Cr.P.C., taking the stand that a bare perusal of the complaint discloses commission of the alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. The Supreme Court after referring to the judgment in Bhajan Lal's case (supra), held that the case fell within Category 07. The Supreme Court, relying on Category 07, has held that Application under Section 482 of the Code, deserved to be allowed and it quashed the proceedings. Insofar as the present case is concerned, it also squarely falls within Category 07 as laid down by the Supreme Court of in Bhajan Lal's case (supra).

24. In another case in Priya Vrat Singh and others v. Shyam Ji Sahai 2008 (8) SCC 232, the Supreme Court relied on Category 07 as laid down in Bhajan Lal's case (supra). In the above case the Allahabad High Court had dismissed an Application filed under Section 482 Cr.P.C. to quash the proceedings under 561-A no.187/2016 Page 27 of 31 c/w 561A no.25/2017 Section 494, 120-B, and 109 IPC and Section 3 and 4 of the Dowry Prohibition Act. After noticing the background facts and parameters for exercise of the power under Section 482 Cr. P.C., the Supreme Court has held that Section 482 Cr. P.C. does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine, which finds expression in the section, which merely recognises and preserves inherent powers of the High Courts. All courts, whether the civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of the administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that 561-A no.187/2016 Page 28 of 31 c/w 561A no.25/2017 without which it cannot exist). While exercising powers under section 482 Cr.P.C., the Court does not function as a court of appeal or revision. Inherent jurisdiction under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of the justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, the court would be justified to quash any proceeding if it finds that the initiation / continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.

25. The powers, as noticed above, possessed by the High Court under Section 561-A of the Code, 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 561-A no.187/2016 Page 29 of 31 c/w 561A no.25/2017 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 extraordinary jurisdiction of quashing the proceeding at any stage. [See: Janata Dal v. H.S.Chowdhary, AIR 1993 SC 892; Raghubir Saran (Dr.) v. State of Bihar, AIR 1964 SC 1; and Minu Kumari v. State of Bihar, AIR 2006 SC 1937]

26. Inherent power, given the above discourse, given to the High Court under Section 482 Cr. P.C. is with the purpose and the object of the advancement of the justice. In case the solemn process of the Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by the Supreme Court in the case of Bhajan Lal (supra). Judicial process is a solemn proceeding, which cannot be allowed to be converted into an instrument of the oppression or harassment. When there is a material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court or for that matter this Court will not hesitate in exercising its jurisdiction under Section 561-A Cr.

P.C. to quash the proceeding under Category 07 as enumerated in State of Haryana v. Bhajan Lal (supra).

27. Based on the holistic consideration of the facts and circumstances summarised in the foregoing paragraphs, the present case appears to be one where Category 07 of the illustrations given in the case of State of Haryana v. Bhajan Lal (supra) is clearly applicable.

28. Having regard to what has been said and done above, I think that there is necessity to exercise the jurisdiction under Section 561-A Cr.P.C. Hence, the order dated 6th February 2016, passed by the court of the learned Additional Sessions Judge (Special Judge Anticorruption) Anantnag, directing framing of the formal charge against the petitioners in connection with the case FIR no.27/2008 P/S VOK, is set aside and as a corollary, the criminal proceedings, if any, initiated against the petitioners on the basis of the impugned order, are also set-aside.

29. Both the petitions are disposed of with connected MP(s).

30. The record be sent down along with the copy of this order.

( M. K. Hanjura ) Judge Srinagar 16.10.2018 Ajaz Ahmad 561-A no.187/2016 Page 31 of 31 c/w 561A no.25/2017