Jammu & Kashmir High Court
Mohd. Kubir Malik And Anr. vs State Of J&K; on 3 November, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
B. A No. 181/2018
Date of order: 0311.2018
Mohd.Kubir Malik and anr. vs State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. G. S. Thakur, Advocate
For respondent (s) : Mr. Sudesh Magotra, GA
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the instant petition filed under Section 497-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) petitioners seek bail in FIR No. 0182/2018 dated 04.10.2018 registered at Police Station, Thanamandi for commission of offence under Sections 420,467, 468, 471 RPC and Section 5(2) of J&K Prevention of Corruption Act, 2006.
2. Facts, relevant for disposal of the present bail application, briefly stated are that petitioner No. 1 was serving as Executive Officer, Urban Local Bodies, MC Sunderbani and was transferred by virtue of Government Order no.51- HUD of2017 dated 06-03-2017 and posted at MC Thanamardi. The petitioner no.2 is serving as Khilafwarzi Inspector, having the job of enforcement of building bye laws and to prevent the people from raising construction of any commercial or non-commercial building without the permission of the Municipal Committee. The petitioner no.2 was retained there and is still serving in the capacity of Khilafwarzi Inspector at MC Thanamandi with honesty and B.A181/2018 Page 1 dedication. It is stated that before joining of petitioner no.1 at Thanamandi, he was serving as Executive Officer, Sunderbani in 2016 prior to this in Nowshera with effect from 2014-16 prior to this in Kalakote in the year 2012-13. In Thanamandi, some engagements of Casual Labour on need basis were made by the then Executive Offices, namely, Garu Ram and Mohd Qasim on the recommendation of the Local MLA of Rajouri, Constituency. The Government in different departments including the Municipalities are Local Bodies it was permissible to engage Seasonal Labourers for the completion of any project and are being paid from the contingent funds, their services are co-terminus with the completion of project. The then Executive Officer in the year 2016, 2015 on the recommendation of the Local MLA 2016, four daily wagers were engaged, thereafter, on 30.01.2016 five were engaged pursuant to the recommendation of the MLA, beside this, the Director Local Bodies by virtue of Order no IDULBJ/2017/4751 dated 07-07-2017engaged another daily wagers as Computer Operator. It is further the petitioner No.l while discharging his duty as Executive Officer, Thanamandi found that some of the casual seasonal laborers who were casually engaged from time to time as when required were using their official position wrongly by working as agent on Bus Adda and by siting on shops ignoring their actual engagements for which they were engaged. As such the petitioners though the medium of circular called upon such labourers that no casual/ seasonal laborers would be allowed for their biometric attendance unless they firstly show their performance of the day to the concern office on whose supervision he/she is working and in this connection petitioner no.1· further submitted communication no MC/T/2018/913 dated 07.09.2018 to the Director Urban Local Bodies seeking instructions regarding the release of salary of one Zareena Begum and Showket Hayat. It is stated that one Mohd Mumtaz who is neither the employee of the department nor having any concerned as appears lodged a complaint with the SDPO, Thanamandi about the engagements of the Seasonal Labourers. The aforesaid circular issued by the petitioner no.I was never challenged in any B.A181/2018 Page 2 court of law. Thereafter, the petitioner by virtue of letter no MC/T/2018/358 dated 15.01.2018 requested the SDPO, Thanamandi that the complaint is pseudonymous and the General Administration Department has issued the circular indicating that how the pseudonymous complaints are to be dealt before taking any action therefore, the petitioner intends to snow the particulars of the complainant, so as to sought out their grievance. The SDPO, Thanamandi instead of disclosing the identity of the complainant as well as the employee of the Municipal Department time and again kept on harassing the petitioners and seized the official record without any reason.
3. Learned counsel for petitioners states that some of the employee including Mohd. Ashfaq Jral has filed SWP No. 70/2018 before this Court seeking his regularization thus, the employee of the Department in connivance with the Police are trying to pressurize the petitioners to regularize their service in violation of the rule and without their competency to regularize their services. It is stated that the petitioner no.1 who is a chronic patient of kidney disease and is undergoing treatment for the last seven years, as such, is not in a position to meet out the atrocities of the police. Similarly, the petitioner no. 2 who has no role in the engagements of the casual labourers, the police is contemplating to arrest the petitioners for the offence which they have not committed and just to malign their position in the society as well as the department. It is further stated that in case the petitioners are admitted on bail, they are ready to co-operate with the investigation, and they will not leave the jurisdiction of the Hon'ble Court without prior permission.
4. I have heard counsel for petitioner and counsel for state. Allegations against the petitioners are as under:-
" ... a complaint was lodged by Daily wagers, Need base & Casual labour employees of Municipal Committee Thanamandi, in which they alleged that they were engaged in Municipal Committee Thanamandi on Need base, Daily Wagers and casual laboures prior to the year 2014 B.A181/2018 Page 3 on consolidated honorarium, but when Biometric attendance was ordered by Govt. of Jammu and Kashmir Inspector Mohd Khalil told them that their names are not existing in the list of Daily wagers. They further alleged that the M.C Thanamandi engaged large numbers of youths from outside the town and ignored the local youths of Thanamandi town and mostly relatives of the officers/officials of Municipal Committee Thanamandi were engaged illegally in M.C Thanamandi. Some of the them are students, some have gone outside the State for labour purpose and some are running their own business in Thanamandi Town and others areas. Moreover, one Mohd Ashfaq Jaral presently serving in the said Department as Daily wager has stated that in the year 2010 Zareena Begum W/O Sr. Assistant Nasser Ahmed Shawl employee in M.C Thanamandi & Nusrat Begum W/o Mohd Qasim were engaged in the said Department as a Daily Wagers and both ladies were regularized in the year (within three years), but till date he has not been regularized even after eight years. However, the perusal of the record shows that Zarena Begum and Musarat Begurn are shown engaged in the year 2005 & 2008 respectively and regularized in the year 2013. Whereas, Mohd Ashfaq Jarral was engaged in the year 2010 has not been regularized till date.
Enquiry into the complaint was got conducted through SDPO Thanamandi and detailed report obtained, which reveals that during the course of enquiry, the enquiry officer made correspondence with E/O Municipal Committee Thanamandi for providing of service record of alleged engaged, but Municipal Committee, Thanamai deliberately failed to provide the requisite information. However, keeping in view the sensitivity of the complaint, Thanamandi police visited in the office of MC Thanamandi and seized record of MC Thandmandi. On perusal of Daily wagers/Need base/Casual labour record, cutting/overwriting on some orders have apparently been found; actual name erased by using fluids and writing other names on the orders issued by the competent authorities also noticed(copy enclosed). The Govt. of J&K has issued order No. GAD-43 dated 17-03-2015, in which Govt. has completely banned engagement of Daily wagers, Need Base and Casual Labourer employee (copy of the order enclosed), but during enquiry, it has been found that MC Thanamandi has illegally engaged following individual on dates shown against each despite Govt. ban.
1 Waseem Ahmad S/o Abdul Subhan on 01-04-2015 2 Sohail Ahmed S/o Abdul Hamid on 04-07-2016
3. Rafia-U-Asam S/o Bada Hussaion on 05-07-2016 4 Waaseem Akram S/o Mohd Akramon on 05-07-2016
5. Nadia Akhter W/o Shoket Shawl on 01-07-2017 B.A181/2018 Page 4 6 Tahir Ayoub S/o Mohd Ayoub on 18.02.2017
7. Anwar-ul-Sadat Shah S/o Mumtaz Shah R/0 Rajouri on 30-06-2016
8. Anwar-ul-Amin s/0 Mogd. Amin r/o Old Rhanimandi on 05.07.2016
9. Ashfag Ahmed S/o Mohd Bashir R/O Rajdhani on 05-07-2016 10 Bisharat Hussain S/o Abdul Aziz R/o Dhoke on 16.08-2016
11. Iram Jaral W/o Abdul Wajad R/o Saaj on 08-05-2017 12 Kaleem Akhter W/o Shaid Tarig Shawl Ro Thanamandi on 20-03-2016
13. Khalid Mehmood S/o Munir Hussain r/0 W. No.17 T.mandi on 16-08.2016 14 Magbool Hussain S/O Abdul Karim R/o Karyote on 30-8-2016
15. Zakir Hussain S/O Mohd Yaqoob R/o Hasplote on 16-03-2016 &
16. Waqar Ahmed S/O Mobd Younis R/o Hasplote on 16-08-2016 It was also found that Casual Labours/Daily Wagers were engaged from Tehsil Rajouri, Kalakote & Darhal in the MC Thandimandi. During enquiry, it has been established that present E/O namely Mohd Kabir Malik and Khalifwarzi Inspr. Mohd Khalil are found involved in illegal appointment in favour of above mentioned persons after taking huge amount by giving undue benefits to their relatives. During perusal of Muster Roll it is found that E/O MC Thanamandi, namely, Kabir Malik and Khalifwarzi Inspector Mohd Khalil engaged Daily Wagers in M.C Thanamandi and the orders were issued in back dates of the year 2012,2013 & 2014/ However, the names of the above mentioned individuals are not found in the Muster Roll of 2012, 2013, 2014. All the above mentioned individuals were engaged in the year 2015 or thereafter. Furthermore, it was also found that E/O Mohd Kabir Malik also remained posted in the year 2012 as E/O and he issued some orders in respect of Khair-Ul-Nisa W/O Abdul Rashid R/O Dodaj, Darhal, Mumtaz Ahmed s/o Nazir Hussain r/o Dodaj, darhal and Barkit Hussain s/o Mohd Mulnish r/o Darhal (relatives) in back dates i.e., the year 2012. As per enquiry conducted by the enquiry officer and evidences collected during the course of enquiry, prima facie allegations of misuse of official position have been made out against Executive Officer Mohd kabir Malik (presently posted as M.C Thanalmandi) and Khalifwarzi Inspector Khalil Ahmed for illegal appointment in M.C Thanamandi. On this SSP Rajouri vide letter No. Clt/Sec/2016/31980/ DPO dated 24.092018 was directed to SHO PS Thanamandi for lodging of FIR against Mohd Kabir Malik (presently posted at Municipal Committee Thanamandi) and Khalifwarzi Inspector Khalil Ahmed under relevant section of law. Accordingly SHO PS Thanamandi has been registered a case FIR No.182/2018 U/S 420/471/467/468/ RPC 5/2 PC act at police Station Thanamandi & investigation has been entrusted to ASl Mohd Ashraf of PS Thanamandi.3 That during course of investigation I.O wrote CD No.01 dated 05-10-2018 in which copied the FIR contents That on perusal of FIR contents, SSP Rajouri vide his letter No.CB/SR/2018/3596065/DFO dated 10-10-2018 the investigation of the instant case has been transferred & entrusted to undersigned (copy of B.A181/2018 Page 5 SSP letter is enclosed herewith). Since the investigation of the case has recently been entrusted to undersigned, which is in progress, after completion all require legal formalities into the investigation of instant case, the same will be concluded on merits at an earliest"
5. Learned counsel for the petitioners while arguing the matter has reiterated all the grounds taken in the bail application, whereas the learned counsel for the respondents stated that the allegations leveled against the petitioners are serious and they have made back-dated appointments, thereby causing loss to the State. It is stated that petitioners have manipulated the appointment letters and issued pre-dated anti appointment orders. It is further contended that petitioners have been found involved in preparing back- dated appointment orders after taking huge amount from the beneficiaries. It is further contended that the petitioners are not entitled for bail.
6. From the bare perusal of the allegations made in the complaint, it is evident that the petitioners have been involved in a cognizable case as they have made back-dated appointment orders.
7. The argument of the learned counsel for the petitioners that petitioner No. 1 was not the Executive officer of Municipality, Thanamandi at the relevant point of time, does not hold good, because from bare perusal of report it is evident that, there is a specific allegation against the petitioners Mohd Kubir Malik and Khalil Ahmed that they have made illegal appointments in MC Thanamandi in back dates. There are also serious allegations against the petitioners that some of the appointees are students, some have gone outside the State for labour purpose and some are running their own business in Thanamandi Town and others areas. It is also alleged that the petitioners have engaged large numbers of youths from outside the town and ignored the local youths of Thanamandi town and mostly are the relatives of the officers/officials of Municipal Committee Thanamandi. It has also come in the investigation that the record pertaining to the Daily wagers/Need base/Casual labour has been tempered by the petitioners and actual names have been erased by using fluids, B.A181/2018 Page 6 thereby writing the names of other persons. The investigation conducted so far primarily involve the petitioners in the illegal appointment of 16 persons after taking huge amount from them. There is also specific allegation against the petitioners that the appointment orders were issued in back dates of the year 2012-13 and 2014, however, the names of the said 16 persons have not been found in the Muster Roll of 2012, 2013, and 2014. All the above mentioned persons were engaged in the year 2015 or thereafter.
8. The ground taken that petitioner no. 1 was transferred on 6.3.2017 as E.O at Thanamandi, so he has done nothing, is not tenable at this stage as there is specific allegation that the petitioner No. 1 remained posted as Executive Officer in the year 2012 and was again posted in 2017; he has issued appointment orders in respect of some persons who were his relatives in back dates i.e .2012. Another argument of counsel for petitioners that investigation is being conducted by ASI of police, who is not empowered to conduct the same under law, is also not tenable, because at present investigation is being conducted by Additional Superintendent of Police, Rajouri. So all these aspect of the matters require detailed investigation and for that purpose custodial interrogation is also required, therefore, I do not find any ground to grant bail, especially anticipatory bail to the petitioners. Corruption menace has ruined the country, so accused involved in these cases should not be granted bail as a matter of right. Already our state is far ahead in corruption than any other states in the country; this all is due to these corrupt officials .
9. In State of A.P. v. Bimal Krishna Kundu and another, which relates to offences punishable under Sections 420, 468 and 406 IPC arisen out of leakage of question paper in respect of examination conducted by Public Service Commission, the Hon'ble Supreme Court vide order dated 03.10.1997, made the following observations: -
"12. We are strongly of the opinion that this is not a case for exercising the discretion under Section 438 in favour of granting anticipatory bail to B.A181/2018 Page 7 the respondents. It is disquieting that implications of arming the respondents, when they are pitted against this sort of allegations involving well-orchestrated conspiracy, with a pre-arrest bail order, though subject to some conditions, have not been taken into account by the learned Single Judge. We have absolutely no doubt that if the respondents are equipped with such an order before they are interrogated by the police it would greatly harm the investigation and would impede the prospects of unearthing all the ramifications involved in the conspiracy. Public interest also would suffer as a consequence. Having apprised himself of the nature and seriousness of the criminal conspiracy and the adverse impact of it on "the career of millions of students", learned Single Judge should not have persuaded himself to exercise the discretion which Parliament had very thoughtfully conferred on the Sessions Judges and the High Court's through Section 438 of the Code, by favouring the respondents with such a pre- arrest bail order."
10. In view of above discussion, bail application is dismissed. The conduct of I/O ASP is also not worth acceptable, because he has not taken any steps to conduct further substantial investigation in the matter. I am of considered opinion that he is in hand in glove with accused persons. So let a copy be sent to IGP for conducting inquiry with regard to his conduct, (Sanjay Kumar Gupta) Judge Jammu 03.11.2018 Bir B.A181/2018 Page 8