Jammu & Kashmir High Court
Rajesh Gupta And Others vs State Of J&K on 22 July, 2022
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
...
CRMC no.463/2017
CrlM no.1530/2020
CrlM no.1748/2021
IA no.01/2017
Reserved on: 30.05.2022
Pronounced on: 22.07.2022
Rajesh Gupta and others
.......Petitioner(s)
Through: Mr Sunil Sethi, Senior Advocate
with Mr Navyug Sethi, and Parimoksh Seth,
Advocates
Versus
State of J&K
......Respondent(s)
Through: Mr Raman Sharma, AAG
CORAM:
HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
JUDGEMENT
1. Inherent jurisdiction under Section 482 Cr.P.C. (previously Section 561-A Cr.P.C.) is being invoked by petitioners imploring quashment of FIR no.12/2017 dated 17th April 2017 (for brevity "impugned FIR") registered by police station Vigilance Organisation, Jammu, against petitioners for commission of alleged offences punishable under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act, Samvat 2006, 120-B of Ranbir Penal Code and Section 9 of the J&K Control of Building Operations Act, 1988 (for short "Act of 1988").
Page 1 CRMC no.463/2017
2. The case, succinctly, put by petitioners is that they are officials of Jammu Municipal Corporation, Jammu (hereinafter for the sake of brevity is referred to as "JMC") and petitioner no.1 is working as Chief Enforcement Officer whereas petitioner no.2 is working as Assistant Enforcement Officer and petitioner no.3 is working as Enforcement Officer. It is maintained by petitioners that all of them have to their credit unblemished long service career as well as service records and not even a single complaint was ever reported against them.
It is being stated that petitioners, while performing their official duties, have taken all stringent measures against all the persons who were involved in raising construction of their buildings in violation of the building permission granted under the Act of 1988, and being field staff, it is because of active surveillance and inspections made by petitioners that violations committed by various persons while raising constructions in breach of sanctioned building plans, were unearthed and proceedings against them were initiated by JMC.
It is being further stated that while performing his duties, petitioner no.3 on 18th June 2014 observed that one Smt. Manju Gupta W/o Vinod Mahajan R/o Plot no.341 Bakshi Nagar, Jammu, started the unauthorized construction of ground floor and on demand, no building permission was shown on spot, and accordingly, on the report of petitioner no.3, petitioner no.1, in exercise of powers vested in him under Section 12(1) of the J&K Control of Building Operation Act, 1988, issued Notice no.JMC/CEO/197/2/2014 dated 18th June 2014, calling upon the said defaulter to discontinue operation of unauthorized Page 2 CRMC no.463/2017 construction from the date of service of the said notice, failing which action required under law would be taken against her. In reply to the aforesaid notice, Smt. Manju submitted reply on 20th June 2014, in which she stated that site plan was duly approved and construction was being raised as per approved site plan. Thereafter, Khilafwarzi Inspector Incharge of the area concerned, carried out inspection of the construction, being raised by Smt. Manju Gupta, and observed major violations committed by the said lady while raising construction and accordingly provisions of Section 7(1) of Act of 1988 were invoked and notice dated 26th August 2014 was issued to defaulter requiring her to show cause within a period of 48 hours from the date of service of notice as to why Khilafwari/violation should not be demolished, which was followed by another notice under Section 7(3) of the Act of 1988, calling upon defaulter to show cause as to why khilafwarzi/violations should not be demolished. Against the aforesaid notice, a statutory appeal was preferred by Smt. Manju Gupta before the J&K Special Tribunal, Jammu (for brevity "Tribunal") in which vide order dated 27th November 2015 read with order dated 17th December 2015 unauthorized structure of 1778 sft @ 30 per sft for being used for residential purpose, was regularized by the Tribunal.
It is being averred that on the basis of some complaint made in the year 2013, respondent took cognizance of complaint and carried out preliminary enquiry in the entire case in which pursuant to various letters/ communications, all the relevant records/documents were duly provided to respondent and on the basis of these documents and reply Page 3 CRMC no.463/2017 furnished by JMC, the respondent became fully satisfied that allegations levelled against petitioners in the complaint, so received, were vexatious and petitioners were given to understand that no case was made out.
It is being further averred that respondent on 17th April 2017 has abruptly registered FIR no.12/2017 against petitioners as also against aforesaid Smt. Manju Gupta for commission of offences made mention of therein with the allegations that during verification conducted by Vigilance Organization into the allegations that on plot no.341, situated in Bakshi Nagar, a huge commercial building has been constructed in residential area in utter violations of Master Plan and Municipal Laws, it was found that a residential building permission was issued by BOCA on 10th April 2013 vide no.49/BS/2013, in favour of the said Smt. Manju Gupta, with permission for build-up area as ground floor, 1st floor and 2nd floor, 1140 sqft. respectively and that it was further alleged in the FIR that verification revealed that beneficiary in active league with accused officers/official of JMC and in utter violation of approved plan, raised the construction as ground floor, 1st floor and 2nd floor of 1736 sqft FAR 95.9 and height 38 ft. with setbacks 1.6 ft only. It has also been alleged that in order to cover up the violation and to provide sufficient time to beneficiary to raise said construction, a mere formality of issuing notice under Section 7(1), 12(1) of the Act of 1988 was undertaken and intentional inaction by accused public servants in league with beneficiary has paved way to beneficiary and allowed her Page 4 CRMC no.463/2017 to raise the construction in blatant disregard and violation of building permission, rules/law.
It is maintained by petitioners that after registration of impugned FIR, respondent vide communication dated 24th April 2017, addressed to Joint Commissioner (Adm.) JMC, sought information regarding implementation or otherwise of the order passed by the Tribunal in the appeal filed by aforenamed lady and in response, Joint Commissioner, JMC, while giving detailed information to respondent vide letter dated 5th May 2017, clearly and unambiguously absolved petitioners by stating that there was no question of any delay or lapse on the part of JMC officials in dealing with the case of Smt. Manju Gupta, as building was not allowed to complete in view of the violations noticed on spot and appropriate action was taken thereon in terms of Act of 1988/ Regulations.
3. Impugned FIR is being challenged by petitioners on various grounds and having regard to the facts and circumstances of the case, it would be apropos to reproduce certain grounds of challenge hereinafter:
(a) Impugned FIR is totally illegal, arbitrary and contrary to provisions of law. FIR impugned is being used as a tool of harassing and victimizing the petitioners notwithstanding the fact that they are not involved in any offence muchless the offences mentioned therein and that respondent has registered the FIR by abusing his official position which is quite apparent and evident from perusal of FIR impugned.
(b) From the allegations levelled against petitioners in impugned FIR, no offence muchless offences mentioned therein are made out against petitioners inasmuch as petitioners immediately after coming to know that defaulter Smt. Manju Gupta was raising Page 5 CRMC no.463/2017 construction in violation and contravention of site plan, initiated proceedings by invoking the stringent provisions of the Act of 1988, but respondent while registering impugned FIR has not appreciated the fact that petitioners being government officials, have to act within the provisions of law and cannot take any action beyond the provisions of the Act of 1988 and that notices were timely issued to defaulter and no default on this count was ever committed by any of the petitioners. It is only because of the active and bona fide duties performed by petitioners that the notices were issued, otherwise those notices could not have been issued to the defaulter and that, as such, impugned FIR has been registered by respondent without appreciating aforesaid factual and legal aspects and with a preconceived notion of harassing and victimizing petitioners.
(c) As per information of petitioners, impugned FIR has been registered on the basis of some anonymous complaint filed by some vested interested persons without actually disclosing their identity and that the Government in General Administration Department (Vigilance Section) has issued a Circular no.22-GAD (Vig) of 2015 dated 10th July 2015, directing that no action is required to be taken on anonymous complaints, irrespective of the nature of allegations and such complaints need not to be simply filed.
(d) from the allegations contained in FIR registered by respondent, no offence muchless the offences punishable under Section 5(1)(d) read with Section 5 (2) of the J&K Prevention of Corruption Act, Samvat 2006, and 120-B RPC, and 9 of the Act of 1988, has been remotely made out against any of the petitioners and that none of the ingredients of Sections 5(1)(d) and 5(2) are coming forth from the allegations which have been alleged against petitioners and which have been made basis for registration of impugned FIR against petitioners and for bringing within the fore of Section 5(1)(d) and 5(2) of the Act of 1988, allegation must contain such ingredients or averments, which on the face of it depict commission of offences punishable under the aforesaid Sections and that in absence of any Page 6 CRMC no.463/2017 such allegations, no offences muchless offences punishable under Section 5(1)(d) and 5(2) of J&K Prevention of Corruption Act, Samvat, 2006, are remotely made out against petitioner.
(e) FIR no.12/2017 is conspicuously silent as to which valuable thing or pecuniary advantage has been obtained petitioner. Obtaining of valuable thing or pecuniary advantage is sine qua non for brining home the offence punishable under Section 5(1)(d) read with 5(2), which is not the case in hand as there is not even a single allegation which remotely suggests such a position existing and this crucial legal aspect of the matter has been completely overlooked and brushed aside by respondent while registering the FIR.
4. Per contra, objections have been filed by respondent, in which it is stated that a verification was authorized by Director, Vigilance, on the basis of a complaint into the allegations of illegal constructions of commercial buildings in Bakshi Nagar, Jammu, by private persons in connivance with officers/ officials of JMC in violation of building permission norms and that during the course of verification, involvement of Rajesh Gupta, then Chief Enforcement Officer; Madan Lal, then Assistant Enforcement Officer; and Kuldeep Kumar, then Enforcement Inspector (petitioners) posted in JMC along with private beneficiary, namely, Manju Gupta, has been prima facie established and pursuant to that impugned FIR registered.
It is being asserted that verification revealed that a residential building permission was issued by BOCA on 10 th April 2013 vide no.49/ BS/2013 in favour of Smt. Manju Gupta with permission to building up area as ground floor, first floor and second floor of 1140 sqft respectively and FAR 190, height 40 feet in respect of plot no.341, Page 7 CRMC no.463/2017 situated at Bakshi Nagar, Jammu. the verification further revealed that beneficiary in active league with accused officers/officials of JMC in utter violation of approved plan raised the construction, which is commercial in nature and it has further been revealed that in order to cover up the violations and to provide sufficient time to the beneficiary to raise constructions, a mere formality of issuing notice under Section 7(1), 12(1) of the Act of 1988 was issued.
Heard learned counsel for parties and perused the record.
5. Learned senior counsel for petitioners would contend that impugned FIR is abuse of process of law and is used as a lever to cause harm to petitioners and that the investigating agency has kept the complaint pending for four long years, ex facie suggesting that the investigation has been launched to harass petitioners.
It has been further contended by learned senior counsel that petitioners, being the enforcements officers of JMC, do not have power to issue demolition notice under Section 7(3) of the Act of 1988, which is amply clear from plain reading of Resolution no.1 dated 21st May 2010 of office of Chairman, Building Operations Controlling Authority, Municipal Area, Jammu, whereby the power under the Act has been delegated and scope of power has been defined whereunder it is manifest that the petitioners do not have any power whatsoever under Section 7(3) of the Act. Learned senior counsel in this regard invited attention of this Court to the communication dated 5th May 2018, to vehemently aver that Joint Commissioner has clarified in terms of the said communication that there was no delay on the part of petitioners Page 8 CRMC no.463/2017 in the matter as the building was not allowed to be completed and that no illegal benefit was, as such, conferred upon any one. Learned senior counsel would further contend that the Tribunal in appeal compounded the violations committed in raising the construction in question.
6. Per contra, learned counsel for respondent would assert that there has been allegation of conspiracy against accused/petitioners in the impugned FIR alleging that instead of preventing the building plan violations, the petitioners turned blind eye deliberately thereto, thereby abused their official position and allowed beneficiary to raise construction in blatant violation of sanctioned building plan.
7. In view of controversy involved in this case and having regard to submissions made by learned counsel for parties, it would be necessary to refer to certain provisions of the Act of 1988. The term "Authority" in terms of Subsection (1) of Section 2 means the "Building Operations Controlling Authority" constituted under Section 3 of the Act. Subsection (3) of Section 2 provides that "building" means any shop, house, hut, out-house, shed, super-structure, boat, house-boat, and stable whether used for human habitation or otherwise and whether of masonry, bricks, wood, mud, thatch, metal or any other material whatever and includes a wall and a well. Subsection (6) provides that "Chief Executive Officer" means Chief Executive Officer appointed under the provisions of the Act and includes an officer empowered under the Act of 1988, to exercise, perform and discharge any of the powers, duties or functions of Chief Executive Officer. Section 3 relates to constitution of Authority. Insofar as control of development and Page 9 CRMC no.463/2017 building operation are concerned, it is envisioned and provided in Section 4 of the Act that no person shall undertake or carry out development of any site in any Municipal area, Local area, Town Area, Notified area or Area Notified under the J&K State Town Planning Act, 1963, or erect or re-erect any building or make or extend any excavation or lay out any means of access to a road in such area except with the previous permission of the Authority concerned in writing. If a person desires to obtain permission is to make an application in writing to the Authority and the Authority may grant permission or refuse to grant the permission, as is envisaged in Section 5 of the Act. The Authority can in terms of Section 6 of the Act of 1988 authorize any person to enter into or upon any site or building to make any enquiry, inspection, measurement or survey or taking levels or such site of building or both, or examining works under construction or ascertaining the course of sewers of drains. Section 7 of the Act of 1988 relates to order of demolition of building in certain areas. All what is stipulated in Section 7 is, in view of controversy involved in this case, necessary to be extracted and reproduced hereunder:
"7. Order of demolition of building in certain areas (1) Where the erection or re-erection of any building has been commenced or is being carried on or has been completed without the permission referred to in section 4 or in contravention of any condition subject to which any permission has been granted, the Authority shall issue a notice in writing calling upon the person to show cause within a period of 48 hours, why the building should not be altered or demolished as may be necessary to remove the contravention.
(2) The Authority shall cause the notice to be affixed on the outer door of some conspicuous part of the building whereupon the notice shall be deemed to have been duly served upon the owner of the occupier of the building.
(3) If the person to whom the notice has been given refuses or fails to show cause within a period specified under sub-section (1) Page 10 CRMC no.463/2017 or if after hearing that person, the authority is satisfied that the erection or re-erection of the building is in contravention of the provisions of this section, the Authority shall by order direct the person to demolish, alter or pull down the building or part thereof so far as is necessary to remove the contravention within a period of not exceeding five days a may be specified in the order and if the person fails to comply with the direction, the Authority may itself cause the erection or re-erection to be demolished after the expiry of the said period and may for that purpose use such Police Force as may be necessary which shall be made available to him by the Police Department on requisition...."
Perusal of Section 7 supra envisages that if erection or re-erection of any building is being commenced or carried on or completed without permission or in contravention to any condition as contained in the permission granted, the Authority is required to issue notice in writing as envisaged by Subsection (1) of Section 7 of the Act of 1988, calling upon the person to show cause within a period of 48 hours, why the building should not be altered or demolished as may be deemed necessary to remove the contravention. As can also be seen from bare reading of Subsection (3) of Section 7 the Act, it is the Authority which has to direct, by an order, the person to demolish, alter or pull down the building or part thereof to the extent it is in contravention of all what is envisaged in Subsection (1).
8. Perusal of the Notification, produced by way of supplementary affidavit by the petitioners, reveals that the powers have been conferred on the officers/officials of JMC to the extent as conferred by various sections of the Act of 1988 as indicated against each. It would be advantageous to reproduce the said notification hereunder:
"In exercise of powers conferred under section 16 of J&K Control of Building Operations Act, 1988 read with Regulation of J&K Control of Building Operations Regulations, 1988, the Building Operation Controlling Authority, Municipal Area, Jammu hereby delegate powers exercised by it to the below Page 11 CRMC no.463/2017 mentioned officers/officials of Jammu Municipal Corporation, to the extent as conferred by the sections of the Act, indicated against each:-
S.No. Designation of Officer/Officials Section/Sub-Section under which delegated
1. Joint Commissioner (A) Sections 6, 7, 8, 9, & 12
2. Chief Enforcement Officer/ Chief Sections 6,7(1), 7(2), Khilafwarzi Officer 9 12(1) 12(2) & 12 (3)
3. Enforcement Officer/Khilafwarzi Sections 6, 7(1), 7(2), Officer 9, 12(1) & 12(2)
4. Asstt. Enforcement Officer/ Asstt. Sections 6, 12(1) & Khilafwarzi Officer 12(2)
5. Enforcement Inspector/ Section 6 Khilafwarzi Inspector It is deducible from above notification and record of the case that powers delegated upon petitioners in the capacity of Chief Enforcement Officer, Assistant Enforcement Officer and Enforcement Officer respectively as they were at the relevant point of time, had been exercised by them.
Even plain reading of above notification would unequivocally show and provide that it was/is only Joint Commissioner (A), who can exercise all the powers under Section 6, 7, 8, 9, & 12, and Subsections thereof, which had/have not been conferred upon the officers/officials subordinate/below in rank to him inasmuch as officers/officials figuring at Serial nos.2 to 5 have been conferred and delegated the miniature and specific powers in particular segments/areas. For instance, Enforcement Inspector/ Khilafwarzi Officer has been conferred with powers to act only under and in terms of Section 6 of the Act 1988, that Page 12 CRMC no.463/2017 is, he can enter into or upon any site or building for making any enquiry, inspection, measurement or survey or taking levels or such site of building or both or examine works under construction or ascertain the course of sewers of drains, or ascertain whether any site is being or has been developed or any building is being or has been erected without the permission or in contravention of any condition subject to which permission has been granted.
Likewise, Enforcement/Khilafwarzi Officer, while exercising the powers under Section 6, can also exercise powers under Subsection (1) & (2) of Section 7, but he cannot exercise powers under Subsection (3) of Section 7 of the Act of 1988 as such powers vest exclusively with Joint Commissioner (A). So is the position about Chief Enforcement/ Khilafwarzi Officer.
Thus, it emerges from above that powers conferred and exercisable under Subsection (3) of Section 7 of the Act of 1988, or say under Section 8, are exclusive domain, competence and jurisdiction of officer, figuring at serial no.1 in the aforementioned notification, i.e., Joint Commissioner (A). In such circumstances, the very edifice of impugned FIR is ruined in character and quality.
9. A further perusal of the record tends to show that Joint Commissioner (A), JMC, vide letter no.MJ/Estt/S/123 dated 5th May 2017 (Annexure G to petition), which for ready reference is reproduced hereunder:
"JAMMU MUNICIPAL CORPORATION TOWN HALL, JAMMU The Investigating Officer (UDR), Vigilance Organization, Jammu.
No: MJ/Estt/S/123 Page 13 CRMC no.463/2017 Dt: 5.5.17 Sub: Case FIR No.12/2017 P/S VOJ.
Sir, Kindly refer your letter NO.SSP/JMU/2017/SHS/2062/VOJ dated 24.04.2018.. In this regard status of case file as per the record available in respect of Smt. Manju Gupta W/o Vinod Mahajan R/o Bakshi Nagar, Jammu Plot No.341 is as under:
Whereas the concerned Enforcement Inspector of JMC reported on 18.06.2014 that Smt. Manju Gupta had started the unauthorized construction on ground floor and on demand no building permission was shown by her on the spot and;
Whereas Vide No.JMC/CEO/197/2/2014 dated 18.06.2014, Notice u/s 12 (1) of J&K Control of Building Operation Act, 1988 was served to Smt. Manju Gupta W/o Vinod Mahajan R/o Bakshi Nagar, Jammu Plot No.341 and;
Whereas Vide No.JMC/CEO/197/2014 dated 18.06.2014, Notice u/s 12 (1) of J&K Control of Building Operation Act, 1988 was served to Smt. Manju Gupta W/o Vinod Mahajan R/o Bakshi Nagar, Jammu Plot No.341 and;
Whereas Smt. Manju Gupta submitted application dated: 20.06.2014 wherein she submitted that site plan is approved in her favour and construction is totally as per approved site plan copy enclosed. Whereas another Notice as required under provision of Section 7(1) of J&K Control of Building Operation Act, 1988 was served to Smt. Manju gupta vide No.JMC/CEO/293/1/2014 dated 26.08.2014 to show cause as to why the khilafwarzi / violation as detailed in the said notice should not be demolished and;
Whereas Order under provision of section 7(3) of J&K Control of Building Operation Act, 1988 was issued vide No. JMC/CEO/344 dated 26.09.2014 directing the owner of the building to demolish the construction/ violation as detailed in the order within 5 days from the service of this notice and;
Whereas on 29.09.2014 Smt. Manju Gupta W/o Vinod Mahajan R/o Bakshi Nagar, Jammu submitted revised plan of Building at 341 Bakshi Nagar Jammu and also submitted an Affidavit pledging that she will not use the building for commercial purpose, till necessary permission is given by JMC and;
Whereas the owner preferred an appeal against the order No.JMC/ CEO/344 dated: 26.09.2014 before Hon'ble Jammu & Kashmir Special tribunal Jammu and Hon'ble J&K Special Tribunal vide order dated 09.11.2015 directed to maintain status-quo on spot and; Whereas the above referred case was decided on 27.11.2015 directing to regularize the total unauthorised structure of 1178 sqft @ Rs.30 per sqft for being used for residential purposes and; Whereas the owner again preferred appeal seeking rectification of order dated: 27.11.2015 passed by Hon'ble tribunal in the afore-titled appeal wherein the total violation is written as 1178 sfqt instead 1778 sqft and;
Whereas the Hon'ble special tribunal passed order dated 17.12.2015 directing that the total unauthorised structure was 1778 instead of 1178 as mentioned in the order dated 27.011.2015. Though this corrigendum it is directed that in the order dated 27.011.2015 already issued by the Tribunal in the above titled appeal case the total unauthorised construction shall be read as 1778 sft instead of 1178 sft. This corrigendum shall form the part of the order dated: 27.11.2015.
Page 14 CRMC no.463/2017 After receipt of orders from the Ld Court of Special Tribunal, case has been processed and was under examination with regard to accepting the compounding fee and same was not accepted till date. In the meanwhile a complaint was received from Vigilance Organization and records sought were submitted for further appropriate action accordingly.
In view of the above facts there is no question of delay or lapse on the part of JMC officials while dealing the case of Manju Gupta as building was not allowed complete in view of the violation noticed on spot and appropriate action taken thereof in terms of the COBO Act / Regulations as detailed here-in-above."
Communication dated 5th May 2017, as quoted above, has given detailed account of the case and disclosed all the facts including one that there is no question of delay or lapse on the part of JMC officials while dealing with the case of Smt. Manju Gupta as the building was not allowed to complete, making it manifestly conspicuous and self- evident that all that has been alleged against petitioners in impugned FIR does not even remotely connect them therewith.
10.Since petitioners are alleged to have committed offences punishable under Section 5(1) (d) read with Section 5 (2) of the J&K Prevention of Corruption Act, Samvat 2006 and Section 120-B RPC, it would be profitable to reproduce the same as under:
"5. Criminal misconduct. --
(1) A public servant is said to commit the offence of criminal misconduct.
.............(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or Section 5(2): Any public servant who commits any offence of criminal misconduct as referred to in clauses (a), (b) and (e) of sub-section (1), shall be punishable with imprisonment for a term which shall not be less than 2 years but which may extend to seven years and shall also be liable to fine and if he commits criminal misconduct as referred to in clauses (c) and (d) of sub- section (1) shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to five years and shall also be liable to fine."
Section 120-B RPC. reads as under:
Page 15 CRMC no.463/2017 "S.120-B (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
11.Perusal of Section 5 (1) (d) reveals that ingredients of offence are that the accused should have been a public servant and should have used corrupt or illegal means or otherwise abused his position as a public servant and that he should have obtained for himself or for any other person any valuable thing or pecuniary advantage. The words "abuse of his position as public servant" would connote that the officer does not act as a prudent man but discords all the normal and statutory rules to accommodate third party and obtains benefit for him.
The use of words by "corrupt or illegal means" or by "otherwise abusing his position as public servant" that a dishonest element on the part of the public servant while obtaining a valuable thing or pecuniary advantage should exist. The words "otherwise abusing his position as public servant has to be read in the same context and in the same degree or culpability as the words "corrupt or illegal means convey". It has to be read in juxtaposition with the words "corrupt or illegal means". The words otherwise abusing his position as public servant do not confine merely to misuse his position as a public servant but such misuse must be with a dishonest mind. The abuse of position by a public servant, thus, in order to come within the mischief of Section 5(1) (d) must necessarily be dishonest for obtaining a valuable thing or pecuniary Page 16 CRMC no.463/2017 advantage for himself or for any other person. In other words, mere misuse without dishonest intention is not abuse, i.e., misusing the position with dishonesty intention would mean abuse and such dishonest intention can be inferred from the facts and circumstances of each case.
12.The facts emerging from the record indisputably tends to show, as already discussed herein before as well, that petitioners have acted within their bounds and have not indulged in any act that would attract provisions of Sections 5(1)(d) or Section 5(2).
13.In so far as offence of criminal conspiracy is concerned, law is settled that there must have been an agreement between the persons, who are alleged to have conspired and that agreement should be either for doing an illegal act or for doing by illegal means. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of conspiracy. Levelling of an allegation of conspiracy without mentioning as to how, where and which of the conspirators hatched conspiracy and for what purpose or circumstances warranting inference of existence of conspiracy is not enough to constitute an offence of conspiracy. An FIR should make out a prima facie case of conspiracy against accused persons as one cannot have the construction of fine superstructure without a foundation. Neither the impugned FIR nor the record tends to show commission of offence of criminal conspiracy by petitioners. Having said that, impugned FIR is liable to be set-aside.
Page 17 CRMC no.463/2017
14.In the above backdrop it would be germane to say that law on the subject is already trite and settled as time and again the scope of jurisdiction of the High Court under Section 482 Cr.P.C. has been examined and several principles that govern the exercise of the jurisdiction of the High Court thereunder have been laid down. A three- Judge Bench of the Apex 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."
15. The law on the question as to when registration of an FIR is challenged, seeking quashment thereof by an accused under Section 482 Cr.P.C. and what are the powers of the High Court and how the High Court should deal with such questions, is fairly well settled by the Apex Court Page 18 CRMC no.463/2017 in a catena of decisions, including in the case State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335 , in which the Apex Court 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 noticing various earlier pronouncements, the Apex 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.
Page 19 CRMC no.463/2017 (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.
(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."
16. A three-Judge Bench of the Apex 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 Apex 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 has 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 06:
"6......All courts, whether 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 course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae Page 20 CRMC no.463/2017 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."
17. It would also be worthwhile to reproduce paragraph 8 infra:
"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)."
18. The Apex Court in another case titled as Priya Vrat Singh and others v. Shyam Ji Sahai reported in 2008 (8) SCC 232, relied on Category 07 as laid down in Bhajan Lal's case (supra). In the said case the Allahabad High Court had dismissed an Application filed under Section 482 Cr.P.C. to quash the proceedings under Section 494, 120-B, and 109 IPC and Section 3 and 4 of the Dowry Prohibition Act. After noticing Page 21 CRMC no.463/2017 the background facts and parameters for exercise of powers under Section 482 Cr. P.C., the Apex Court has held that Section 482 Cr. P.C. does not confer any new power on the High Court as it only saves the inherent power which the Court possessed before enactment of the Code. It envisages three circumstances under which 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 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 Page 22 CRMC no.463/2017 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.
19. In the case of Dineshbhai Chandubhai Patel vs. State of Gujarat and others, reported in 2018 (3) SCC 104, the Apex Court has laid down following at paragraph 26:
"26. This Court in State of West Bengal & Ors. Vs. Swapan Kumar Guha & Ors (AIR 1982 SC 949) had the occasion to deal with this issue. Y.V. Chandrachud, the learned Chief Justice speaking for Three Judge Bench laid down the following principle:
"Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence.
The condition precedent to the commencement of investigation under S.157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S.157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences."
Page 23 CRMC no.463/2017
20. Based on the all-inclusive consideration of the facts and circumstances summed up in the foregoing paragraphs, the present case appears to be the one where Categories 01 and 03 of the illustrations given in the case of State of Haryana v. Bhajan Lal (supra) are clearly applicable to the case.
21. Having regard to what has been observed, considered and analysed herein above, the exercise of jurisdiction under Section 482 Cr.P.C. seemingly is warranted. Hence, the petition in hand is allowed and the impugned FIR, bearing FIR no.12/2017, is quashed.
22. The record, produced for perusal of the Court, be returned to learned AAG.
(Javed Iqbal Wani) Judge Jammu 22.07.2022 Ajaz Ahmad, PS Whether approved for reporting? Yes/No. Page 24 CRMC no.463/2017