Jammu & Kashmir High Court
U. S. Dour & Ors. vs State on 19 July, 2017
HIGH COURT OF JAMMU AND KASHMIR AT
JAMMU
Case: 561-A Cr.P.C. No.220/2017 & MP No.01/2017
Date of Decision :19.07.2017
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U. S. Dour & ors. Vs. State
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Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
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Appearing counsel:
For petitioner(s) : Mr. G. S. Thakur, Advocate.
For respondent(s) : Mr. Raman Sharma, Dy. AG.
_______________________________________________________________ i. Whether approved for reporting in Press/Media : Yes/No /Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Petitioners have filed present petition for quashing of FIR No.11/2013 under Section 5(1)(d) read with Section 5(2) of J&K Prevention of Corruption Act 2006 and Section 120-B RPC.
2. Learned counsel for the petitioners submitted that petitioners Nos.1 to 6 have since now retired while petitioner Nos.7 to 9 are in service. In the year 2004-2005, the technical sanction to the estimate of WSS Kote-II was accorded for providing and laying dismantling/re-laying of GI Pipes of different dias on new alignment in the year 2004-2005 at actual reasonable rates for executing the work departmentally as per the prevailing market labour rates and the rates adopted by other Divisions of 561-A Cr.P.C. No.220 of 2017 Page 1 of 12 the PHE Department of Jammu region for the said Kandi terrain. The rates were kept within the permissible guidelines of 25% to 50% of the costs of pipes and dismantling at 50% of the laying costs. The Engineering Department has issued the guidelines that how much labour can be paid for laying or dismantling of pipes. That the respondent- State after the completion of work in the year 2005- 06, initiated preliminary enquiry and the said enquiry was headed by one Dy.SP Ashok Singh Chib and Inspector conducted a joint surprise check in PHE Division Akhnoor and the record pertaining to two PHE Scheme i.e. WSS Kote-II and WSS Simbliwala for the year 2003-04 and 2004-05 seized. That after two months again a new officer re- opened the enquiry and the same was handed over to one Ashok Sharma SP of Vigilance Organization of Jammu registered the FIR against the petitioners just in order to harass them. The respondent initiated the enquiry way back in 2005-2006 and since then number of investigating officers have been changed. The site was being excavated in order to inspect the welding joints at the cost of the petitioners, thus, they are being harassed. That 561-A Cr.P.C. No.220 of 2017 Page 2 of 12 again after four years the same enquiry officer registered the FIR against the petitioners and the investigation was handed over to one Zaffar Amin who visited the spot number of time for inspecting the work executed by the petitioners in the year 2004-04 and tallied it with the M. Book/Bill and found to be correct. It is further submitted that the Engineering Team of Vigilance Organization Jammu ultimately in order to malign the position of the petitioners reported that there is loss to the State exchequers to the tune of Rs.57,000/-.
3. It is stated that the impugned FIR is otherwise liable to be quashed on the ground that even State Government has not granted any sanction for the prosecution of the petitioners and that the allegations made in the FIR are inherently improbable and evidence collected in support of the same do not disclose commission of any offence and made out a case against the petitioners. It is only with the change of Investigating Officer, a new story is being cooked on every occasion.
4. With afore mentioned submissions, learned counsel prays that the instant petition be allowed and impugned FIR be quashed.
561-A Cr.P.C. No.220 of 2017 Page 3 of 12
5. Learned Dy. AG contested the claim of the petitioners tooth & nails submitting that while executing Water Supply Schemes under Accelerated Rural Water Supply Programme, a Central Govt. Scheme for the year 2005-2006, PHE officials drew the bills against non existent works by preparing and drawing fraudulent bills of labour component and the expenditure has not been incurred as per approved action plan. That during Joint Surprise Check, a Test check of 50 nos. of estimates at Kot-II revealed that Rs.5,02,320/- have been charged as inflated labour component under water supply scheme and for commission/testing of rising main of 3" 4" and 6" dia in same schemes, Rs.57,696 have also been charged which was not permissible as it is included in the scheme rates for laying of pipes of different diameters. It is further revealed that in a test check of 39 estimates of Sumbliwala Scheme, Rs.2,92,715/- have been charged as inflated labour component for laying/dismantling/re-threading of GI Pipes of different diameter in the shape of labourers and fitters which are in excess of the rates charged on the basis of schedule rates prevalent at the time. 561-A Cr.P.C. No.220 of 2017 Page 4 of 12 That 10% of contractors profit has also been charged by the officers/officials of PHE sub Division Bhalwal Akhnoor concerned in laying/dismantling/re-threading of pipes of different diameters in the above mentioned water supply schemes whereas the work has been executed departmentally. That the petitioners in connivance with each other conferred undue benefit to themselves and caused loss to the State Exchequers. That the present FIR came to be registered on the basis of outcome of the Joint Surprise Check and the investigation of the case is in progress.
6. Heard learned counsel for the parties and gone through the case.
7. Learned counsel for petitioners has reiterated the grounds taken in memo of petition. He has relied upon 1994 AIR SC 948 in case titled Ramannand Chowdary v State of Bihar and AIR 2001 SC 2989 case titled Mahendra Lal Das v State of Bihar.'
8. Whereas learned counsel for respondents has reiterated the stand taken in the objections. 561-A Cr.P.C. No.220 of 2017 Page 5 of 12
9. I have considered the rival contentions and gone though the law of the subject.
10. In AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Adulla, it is held as under :-
11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two- Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad[7], Jehan Singh v. Delhi Administration[8], Amar Nath v. State of Haryana[9], Kurukshetra University v. State of Haryana[10], State of Bihar v. J.A.C. Saldanha[11], State of West Bengal v. Swapan Kumar Guha[12], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi[13], Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre[14], State of Bihar v. Murad Ali Khan[15] and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated:-
"(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 561-A Cr.P.C. No.220 of 2017 Page 6 of 12 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 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.561-A Cr.P.C. No.220 of 2017 Page 7 of 12
(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."
It is worthy to note that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where court's inherent power can be exercised.
12. There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court.
13. In this regard, it would be seemly to reproduce a passage from Kurukshetra University (supra) wherein Chandrachud, J. (as His Lordship then was) opined thus:-
"2. It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be 561-A Cr.P.C. No.220 of 2017 Page 8 of 12 exercised sparingly, with circumspection and in the rarest of rare cases."
14. We have referred to the said decisions only to stress upon the issue, how the exercise of jurisdiction by the High Court in a proceeding relating to quashment of FIR can be justified. We repeat even at the cost of repetition that the said power has to be exercised in a very sparing manner and is not to be used to choke or smother the prosecution that is legitimate. The surprise that was expressed almost four decades ago in Kurukshetra University's case compels us to observe that we are also surprised by the impugned order."
11. Keeping in view above law into consideration, I am of considered opinion that no case for quashing of FIR has been made out because FIR No.11/2013 under Section 5(1)(d) read with Section 5(2) of J&K Prevention of Corruption Act 2006 and Section 120- B RPC has been lodged by respondent with allegations that petitioners who were employees at relevant time in PHE while executing Water Supply Schemes under Accelerated Rural Water Supply Programme, a Central Govt. Scheme for the year 2005-2006, PHE officials, drew the bills against nonexistent works by preparing and drawing fraudulent bills of labour component. The contents of FIR reads as under :-
"A joint surprise check (JSC) conducted on a report into the allegations of misappropriate of funds committed by officers/officials of 561-A Cr.P.C. No.220 of 2017 Page 9 of 12 PHE Sub-Div. Bhalwal during the period 2004 to 07 (financial year) with respect to execution of water supply schemes ltd. Sumbliwal, Guraha Pattan, Amb, Dumi, migrant camp purkhoo and Bajari Gorda through accelerated Rural Water Supply Programme (a Central Govt. Scheme) by way of drawing bills against (i) Non-existent works (ii) by preparing and drawing fraudulent bills of labour component and (iii) the expenditure has not been incurred as per approved action plan, has revealed that a large scale misappropriation/bungling of funds have been taken place on the name of actual labour used for laying/ dismantling/ rethreading of G.I.Pipies of various dues in addition to the use of schedule rates of 1998/2001, prevalent during the period of execution.
A Test check of 50 Nos. of estimate reveals that Rs. 5,092,320/- have been charged and as inflated labour component in Water Supply Scheme, Kot 2nd for different diameters. Rs.57 have also been charged for omission/testing of rising main of 3", 4" and 6" dia in some Schemes, whereas which was not permissible as it is included in the Schedule rates for laying of pipes of different diameters in the said Schemes.
The JSC further reveals that Rs.2,13,760/- have been shown charged for welding of pipes of different dias in the above mentioned Schemes. Whereas the owner of the Firm M/s Kulwant Singh Khasla Steel Fabricate,Govindpura, Satwari, Jammu, hwo have shown executed the said work, denied the same.
The joint surprise check also reveals that in a test check of 39 estimates of sumbliwala Schemes Rs. 2,92,715/- have been charged as inflated labour component for laying/dismantling rethreading of G.I.Pipes of different diameters in the shape of labourers and fitters which are in excess to the rates charged on the basis of schedules rates prevalent at the time.
The joint surprise check further reveals that 10% of contractors profit has also been 561-A Cr.P.C. No.220 of 2017 Page 10 of 12 charged by the officers/officials of PHE Sub Div. Ahknoor concerned in laying/dismantling/rethreading of pipes of different diameters in the above mentioned water Supply Schemes, whereas, the work has been executed departmentally.
Thus, the aforementioned commission/ commission on the part of officers/officials of PHE Sub Div. Bhalwal, Akhnoor namely S/Sh. V.K.Abrol the then Xen , U.S. Dour, the then Ex. Eng.(XEn), R.C.Gupta, the then Xen PHE Div. Akhnoor, Surinder Singh, the then AEE Sub Div. Bhalwal, Sanjay Nargotra, the then AEE Sub Div. Bhalwal, R.K.Sharma, Head Draftsman, N.K.Kohli, Head Draftsman, T.K.Sharma, J.E and D.B Singh, JE and others prima facie disclose offences punishable u/s 5(1) (D) r/w section 5(2) PC Act 2006 BK & 120-B RPC. Hence a case under aforesaid section/provision of law is registered and investigation is entrusted to Insp. Zaffer Amin of Jammu Wing of P/S VOJ."
12. Bare perusal of contents of FIR it is evident that cognizable offences for lodging of FIR has been made out against the petitioners which require to be investigated in its right perspective. Petitioners have not denied that they were not employees of PHE at that very relevant time. It is not a case that allegations made in the FIR 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. It is also not a case that there 561-A Cr.P.C. No.220 of 2017 Page 11 of 12 is an express legal bar engrafted in any of the provisions of the Code or under P.C Act.
13. The facts narrated in this petition cannot be appreciated in detail for inferring that FIR is incorrect and does not require investigation. The contents of FIR are only allegations and allegations can be rebutted by accused by producing documentary or oral evidence before I/O.
14. I have gone through the citations produced by counsel for accused. These are not applicable in present set of case. These both citations pertain to delay in giving sanctions in corruption cases. Sanction is only required, when investigation is completed. But in present case investigation in the case is yet to completed. Hence this petition is dismissed. Petitioners are at liberty to place all documentary or oral evidence before I/O. Respondent is directed to complete the investigation expeditiously.
( Sanjay Kumar Gupta ) Judge Jammu 19.07.2017 *Narinder* 561-A Cr.P.C. No.220 of 2017 Page 12 of 12