Jammu & Kashmir High Court
Romesh Padha And Ors. vs . State Of J&K on 29 March, 2019
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
CRMC No.158/2017
IA No.1/2017
c/w
CRMC No.87/2017
IA No.1/2017
Date of order: 29.03.2019
Romesh Padha and ors. Vs. State of J&K
c/w connected matter
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner/appellant (s) : Mr. Rahul Pant, Advocate. (in CRMC No.158/2017)
Mr. Parimoksh Seth, Advocate &
Mr. Navyug Sethi, Advocate (in CRMC No.87/2017)
For respondent(s) : Mr. Raman Sharma, Dy AG.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
1. Both the petitions have arisen out of same FIR No.29/2016 dated 28.12.2016, registered at Police Station, Vigilance Organization, Jammu for commission of offence under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act, 2006 and Section 102-B RPC against the petitioners. Petitioners, who were officers of Electric M&RE Division Rajouri and Kalakote, have challenged the registration of FIR against them on various grounds.
2. In CRMC No.158/2017, it has been stated that petitioner Nos.1 & 2 have been retired from Government service as Executive Engineer and Assistant Executive Engineer in the year 2008 and 2010 respectively from the Power Development Department and CRMC No.158/2017 c/w CRMC No.87/2017 Page1 of 18 petitioner No.3 continues to be in service even as on today and is presently posted as Junior Engineer; that somewhere in the year 2006 when the petitioner No.I was posted as I/C Executive Engineer in the M&RE Division Rajouri of the Power Development Department, certain purchases were made on emergency basis; that M&RE Division of the Power Development Department deals with the supply of power to various consumers in the area of their jurisdiction. Most of the times when electrical material is required on emergency basis, Electric Central Store of the Power Development Department is approached for the supply of said material and in case of non-availability of said material, purchase is made from open market either through government agencies or from registered firms by inviting quotations; that in case the necessary supplies are not received/not available in the Electric Central Store of the Power Development Department, the purchases are made on emergency basis, inasmuch as the failure to have the requisite material purchased on emergency basis can lead to disruption of power supply to the various consumers which at times results into law and order problem. It is commonly faced problem in the Power Development Department more particularly in the M&RE Wing that as and when the power is disrupted during the peak hours in the summer season in Jammu or in winter season in Kashmir, it causes law and order problem and violent mobs of the consumers even attack the power Stations. On many occasions even the officials of the Power Development Department dealing in the M&RE Wing are man handled because of the disruption of power. Otherwise also it is hard to imagine that in case of CRMC No.158/2017 c/w CRMC No.87/2017 Page2 of 18 emergency requirement of electrical material to ensure the uninterrupted power supply to the consumers, the NIT will be issued or bids will be invited; that under similar set of circumstances in the year 2006 when petitioner No.1 was posted as Executive Engineer in Rajouri, certain purchases were made after the information was received from the Electric Central Store of the Power Development Department regarding the non-availability of such material. The material in the form of conductors, lightening arresters, transformers/poles etc. were purchased on emergency basis and the same was the practice throughout the State as it is not practically possible to issue N1T and then to purchase the material in case of emergency. The procedure of issuing NIT and calling for bids can take months together and during the aforesaid process the power supplies cannot remain interrupted to the consumers. During the said period i.e. 2006 petitioner No.2 was posted as Assistant Executive Engineer and Petitioner No.3 was posted as Junior Engineer in M&RE Division, Rajouri; that it is not only the Division Rajouri that such kind of purchases were made but throughout the State same was the practice and same system continues even as on today; that the purchases which were made as per the averments made in the FIR, in the year 2006 by the Division of the petitioners, have been estimated at Rs.98,99,202.00 (rupees ninety eight lac ninety nine thousand two hundred and two only). Similarly in the same FIR purchases in the Kalakote Division have been shown to the tune of Rs.36,69,132.00(rupees thirty six lac sixty nine thousand one hundred thirty two only). Petitioners herein were serving in the M&RE Division, Rajouri CRMC No.158/2017 c/w CRMC No.87/2017 Page3 of 18 wherein the purchases to the tune of Rs.98,99,202.00 were made; that a FIR being FIR No.29 of 2016 Police Station Vigilance Organization Jammu for commission of offence under section 5(1)(d) read with section 5(2) of J&K P.C. Act Svt, 2006 and Section 120-B RPC, came to be registered after 10 years of the purchases wherein it is alleged that the purchases have been made at exorbitant rates and in so far as the Rajouri Division is concerned, it is the allegation that a loss to the tune of Rs.5,53,696. 00 (rupees five lac fifty three thousand six hundred ninety six only) has been caused to the state exchequer; that the petitioners were surprised to see such kind of absurd allegations leveled against them that too after two of them had retired from service about nine/seven years back. Petitioners do not have any record to look into and to properly make further submissions before this Court, inasmuch as Petitioner Nos.1 & 2 had retired about nine and seven years back respectively and are not in possession of any of the records. In so far as Petitioner No.3 is concerned, he too is now posted in Kalakote Sub Transmission Division; petitioner No. 3 at the relevant time pertaining to the period, for which the FIR has been registered, was posted in the office of the Executive Engineer, M&RE Division Rajouri as Junior Engineer; that before proceeding further, it is submitted that on 11th September, 2006 a telegram was received in the Divisional Office from the Senior Superintendent of Police, Vigilance Organization, Jammu to submit attested photo copies of supply orders with respect to the purchases made by the Division between April, 2006 till August, 2006 other than the items purchased from the Electric Central CRMC No.158/2017 c/w CRMC No.87/2017 Page4 of 18 Store, Jammu. The office of petitioner No.1 accordingly submitted the requisite reply on 18th September, 2006 and subsequently again some more information as sought by the respondent pertaining to the period w.e.f. January 2006 instead of April 2006 upto August 2006 and this additional information was also submitted, thereafter nothing was heard from the respondent. After the purchases were made all the accounts/bills/purchased orders etc were verified and checked and cleared by the Divisional Accounts Officer and payments for such purchases were made subsequently. Thereafter, the accounts were audited by the audit party from the office of the Accountant General J&K State as also by the State Finance Audit Party and nothing wrong was found by any of the aforesaid institutions against the Division; that it is nobody's case that the petitioners did not approach the Electric Central Store of the Power Development Department for the supply of the requisite material but it was only because of non-availability of the material in the Electric Central Store, that the purchases were made from the open market on emergency basis. Petitioners have challenged the said FIR on the following grounds:
a) That the FIR registered against the petitioners is totally illegal, arbitrary and contrary to the provisions of law. The allegations leveled against the petitioners are inherently improbable and no reasonable person would come to the conclusion with respect to the culpability of the petitioners on the basis of said allegations.
Moreover the time gap between the purchases and the registration of the FIR is such that it is apparent on the face of it that registration of FIR is arbitrary exercise of power. The FIR is totally illegal and arbitrary and is liable to be quashed.
b) That a perusal of the FIR will show that it is not the contention in the FIR that any of the petitioners had taken any bribe or abused his official position. The FIR impugned is conspicuously silent about the culpability of the petitioners in causing loss to the state exchequer. There is no evidence on record to show the mala fide CRMC No.158/2017 c/w CRMC No.87/2017 Page5 of 18 intention on the part of the petitioners. As has already been stated by the petitioners in the fore going paras, the Electric Central Store from where the procurements were made, was not having the items which were required and items which were required on emergent basis were such which cannot be tendered on short notice basis. The FIR has been registered merely on the basis of presumptions, conjectures and surmises and the same is totally illegal, as such, liable to be quashed.
c) That it is unfortunate that the petitioners were not associated with the preliminary inquiries to explain the respondent the compelling circumstances under which, the purchases were made. The respondent has failed to realize that keeping in view the emergent situations, at times the purchases are required to be made from the market as has already been stated in the fore going paras. In the present case most of the items were either purchased from the government agencies i.e. SICOP or from the registered firms on the same rates, conditions and specifications as were approved by the Chief Engineer, Procurement and Material Management Wing, Jammu.
d) That making the purchases by the department without inviting tenders and on the basis of repeat supply order basis to meet the emergent situation for restoring the power supply cannot be said to be an offence which is punishable under the aforesaid provisions. As has already been stated in the present case most of the purchases were made from the government agencies and some of the petty items which were purchased from the open market were purchased only after inviting quotations, as such it cannot be said by any stretch of imagination that some offence has been committed nor there is any allegation in the FIR that the petitioners have accepted any bribe from any quarter. The purchases were actuated because of the emergent situations in order to keep the different utilities/public services functioning rather than to cause loss to the state exchequer. The offences under section 5(1) (d) read with section 5(2) of the J&K P.C. Act and 120-B RPC are not made out.
e) That the respondent has failed to appreciate that nobody has ever questioned departmentally the purchases made by the petitioners nor they ere was ever any public complaint, inasmuch as departmental authorities are well aware of the fact that these purchases in emergent situation are routine manner in the Power Development Department but intentionally and deliberately the FIR impugned has been registered not only against the purchases made in the Rajouri Division but for rest of the Divisions i.e., Division Kathua, Division Rajouri and Division Poonch. The delay in the registration of FIR itself goes into the root of the present FIR and the same is liable to be quashed.
f) That as per the information of the petitioners, the impugned FIR has been registered on the basis of some anonymous complaint CRMC No.158/2017 c/w CRMC No.87/2017 Page6 of 18 filed by some vested interests without actually disclosing its identity. The Government in the General Administration Department has already issued necessary instructions and its instructions/circulars are binding upon all the State Government Departments including Vigilance Organization. The Circular No. 29-GAD(VIg.) of 2014 dated 31stJuly, 2014 pertaining to disposal of anonymous/pseudonymous complaints where under inter-alia it has been directed that no action is required to be taken on anonymous complaints irrespective of the nature of allegations and such complaints need to be simply filed. The Vigilance Organization in the instant case has acted in utter disregard of the aforesaid circular and has not only entertained the anonymous complaint but has also registered the impugned FIR without conducting any preliminary enquiry into the matter. On this ground also, the impugned FIR deserves to be quashed.
g) That the crux of the offence under section 5 (2) of the J&K Prevention of Corruption Act, 2006 is that the Government should be put to loss of public exchequer and there should be corresponding gain to any person i.e either the Government employee or the other person to whom he wants to bestow the illegal benefits. There is no wrongful loss to the Government. The offence under section 5 (2) as such is not made out. Even if the allegations are taken on their face value, even then no case is made out against the petitioners. There is no allegation of petitioners having taken any bribe from any quarter nor is there any evidence to that effect, so on both counts no offence is made out against any of the petitioners. On this ground also, the impugned FIR deserves to be quashed.
h) That unfortunately the respondent has not realized that every purchase made without issuing NIT cannot be termed as an offence under the Prevention of Corruption Act and the emergent purchases made in the Power Development Department more particularly in the M&RE Divisions are on grave emergency basis as they deal with the maintenance of the supply of electricity to the consumers and in case of any kind of breakdown the process cannot wait till the issuance of NIT as the restoration of the supply is required to be shown on emergent basis, for which, purchases are also required to be made from the open market but the respondent has dubbed all such purchases illegal thus registering the FIR. The impugned FIR is nothing but abuse of process of law. With a view to prevent the abuse of process of law and to otherwise secure the ends of justice, the petitioners seek the kind indulgence of this Court to invoke its inherent jurisdiction under the provisions of Section 561-A CrPC and quash the impugned FIR.
CRMC No.158/2017 c/w CRMC No.87/2017 Page7 of 18
3. In CRMC No.87/2017, petitioners therein have also challenged the impugned FIR on same grounds.
4. The respondent has filed objections wherein it has been stated that a preliminary Enquiry No.05/2006 was authorized by Commissioner of Vigilance, J&K on the basis of source report into the allegations of irregularities in purchase of electric items worth Crores of rupees by the Power Development Department in Rajouri, Kathua and Poonch Districts on highly exorbitant rates from open market without following any codal formalities. During the course of said preliminary enquiry, list of items alongwith photocopies of supply orders against items procured locally by different PDD divisions mentioned above for the period from January, 2006 to August, 2006 were collected from the concerned Divisions. The rates of the items available in Electric Central Stores Division Jammu for the above mentioned period were obtained and compared with the rates of the items procured locally without observance of codal formalities by various divisions/sub- divisions of M&RE Rajouri, Poonch, Kathua and STD Division- 1V Kalakote, STD Division-III Kathua. Moreover, the rates of some randomly selected items approved by Purchase Committee of other districts were also obtained and compared with the items which were procured locally by various divisions/sub-divisions mentioned above without observance of codal formalities. During further course of enquiries, the rates of few common electric items from the supply orders of M&RE Rajouri, Poonch, Kathua and STD Division-IV Kalakote, STD division-III Kathua were randomly checked and compared with the rates of the Electric CRMC No.158/2017 c/w CRMC No.87/2017 Page8 of 18 Central Stores, Division Jammu/approved rates of Purchase Committee of other district prevalent at that time and it was found that on these purchases, a huge loss has been caused to the State exchequer; it was found that officers/officials of M&RE Rajouri and STD Division-IV Kalakote namely Sh. R.K.Padha (now retired) (petitioner no.1), the then Executive Engineer M&RE Rajouri and Sh. B.B. Sen, then XEN STD Division-IV Kalakote, Sh.R.L.Koul, then AEE Rajouri (petitioner no.2), Sh. Maqbool Choudhary, then AEE Kalakote, Sh. Maroof Dar, then Store Officer Rajouri (petitioner no.3) and Sh.T.S. Jamwal, the then Store Officer Kalakote; officers/officials of M&RE Poonch namely Sh.U.C. Manchanda (now retired) and Sh. Mumtaz Hussain, then AEE Poonch and Sh. Sham Lal, then Store Officer Poonch; and officers/officials of M&RE Kathua and STD Division-III Kathua namely Sh. S.C. Gupta (now retired), Sh. Amlok Singh, then AEE (T.O.) M&RE/STD Division-III Kathua and Sh. Daljit Singh, then Store Officer M&RE/STD Division-III Kathua had purchased electric items through various supply orders to different firms without inviting N1Ts/Quotations on exorbitant rates. In this way, the above mentioned officers/officials of PDD department by abuse of their official position and in connivance with each other/proprietors of the supplier firms to confer undue benefit to them for their ulterior motives caused huge loss to the State Exchequer. As such three cases vide FIR Nos.28, 29 and 30 of Police Station Vigilance Organization, Jammu have been registered under section 5 (1) (d) r/w 5 (2) J&K P.C. Act, 2006 and Section 120-B RPC on the prima facie establishment of offences on the CRMC No.158/2017 c/w CRMC No.87/2017 Page9 of 18 part of the aforementioned accused public servants and others; that the present petitions have been filed by the petitioners who are accused in case FIR No.29/2016 registered at P/S VOJ on 28/12/2016 on the basis of outcome of the preliminary enquiry mentioned above, into the allegations of irregularities in purchase of electric items by the Power Development Department in Rajouri district on highly exorbitant rates from open market without following any codal formalities. During the course of enquiry, rates of few common electric items procured from local market by the accused officers/officials of M&RE Rajouri and STD Division-IV Kalakote were randomly checked and compared with the rates of same items found available in the Electric Central Stores, Division Jammu, and also with the approved rates of similar items procured by the District Purchase Committee of other district, which revealed that on these purchases by the accused officers/officials a huge loss has been caused to the State exchequer; that the enquiry has revealed that the Executive Engineer M&RE Rajouri and STD Division-IV Kalakote have purchased electric items valuing Rs.98,99,202/-and Rs.36,69,132/-respectively, making total of Rs.1,35,68,334/- through various supply orders to different firms during the period January, 2006 to August, 2006 without observance of codal formalities as envisaged in the State Financial Code on highly exorbitant rates. It was found that on these purchases, a loss of Rs.5,53,696.67/- & Rs.1,06,980.80/- respectively totaling to Rs.6,60,677.47/-has been caused to the State exchequer which would increase manifold when the said loss is calculated on the whole purchases. Moreover, it was the duty of CRMC No.158/2017 c/w CRMC No.87/2017 Page10 of 18 the accused officers/officials to collect the items which were available in the Electric Central Store Division, Jammu at that time and for other items which are required to be procured locally, necessary codal formalities had to be observed by the concerned DDOs/Ex-Ens, which was not done intentionally and deliberately avoided with an aim to favour the supplier firms by abuse of their official positions for their vested interests, thereby causing corresponding losses to the State Exchequer. In this way, the officers/officials of M&RE Rajouri and STD Division-IV Kalakote namely Sh.R.K. Padha, then Xen M&RE Rajouri (now retd.) (petitioner No.1), Sh. B. B. Sein, then Xen STD Division-IV Kalakote, Sh.R.L. Koul, then AEE Rajouri (petitioner no. 2), Sh. Maqbool Choudhary, then AEE Kalakote, Sh. Maroof Dar, then Store Officer Rajouri (petitioner no.3) and Sh. T. S. Jamwal, then Store Officer Kalakote by abuse of their official positions and in connivance with each other/proprietors of the supplier firms to confer undue benefit to them for their ulterior motives caused a huge loss to the State exchequer. As such, case FIR No. 29 of P/S VOJ dated 28/12/2016 has been registered in Vigilance Organization, Jammu under section 5 (1) (d) r/w 5 (2) of the J&K Prevention of Corruption Act Samvat 2006 and Section 120-B RPC on the prima facie establishment of offences on the part of the aforementioned accused public servants and others. The investigation of the case has been entrusted to Inspector Raghubir Sharma of Vigilance Organization, Jammu. The investigating officer during the course of investigation perused the preliminary enquiry file and other record that was seized in the instant case.
CRMC No.158/2017 c/w CRMC No.87/2017 Page11 of 18 The investigating officer sought original record from the concerned department/division during the aforementioned period. The investigation is presently going on in the said case.
5. Heard learned counsel for the parties and perused the case file.
6. In our democratic polity, where rule of law prevails, no individual, howsoever highly placed he may be, can claim immunity much less absolute immunity from the law and every individual citizen is always under law.
7. Firstly, I will proceed to examine inherent powers of the High Court under Section 561-A of Cr.P.C. in the backdrop of facts and circumstances of the case.
8. Supreme Court in State of Haryana & Ors. Vs. Choudhary Bhajan Lal & Ors. reported in AIR 1992 Supreme Court 604, laid down guidelines for exercising inherent powers under Section 482 Cr.P.C. to quash FIR and criminal proceedings. The Court held:
"108. 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 channelized 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 CRMC No.158/2017 c/w CRMC No.87/2017 Page12 of 18 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 in- vestigation 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.
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.
109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
9. Supreme Court, in case of titled Janta Dal Vs. H.S. Choudhary [(1992) 4 SCC 305], while relying on Choudhary Bhajanlal's case (supra), held:
"This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court CRMC No.158/2017 c/w CRMC No.87/2017 Page13 of 18 being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great 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 the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. This Court in State of Haryana v. Ch. Bhajan Lal and Ors., to which both of us were parties have dealt with this question at length and enunciated the law listing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings. We do not, therefore, think it necessary in the present case to extensively deal with the import and intendment of the powers under Sections 397, 401 and 482 of the Code."
10. In a subsequent decision in case titled Vinod Raghuvanshi Vs. Ajay Arora & Ors. [(2013) 10 SCC 581], in a case under the P.C. Act, Supreme Court affirmed the order passed by the High Court whereby it declined to exercise inherent powers for quashment of criminal proceedings. The Court observed:
"It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not "kill a still born child", and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither can the court embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence nor should the court judge the probability, reliability or genuineness of the allegations made therein. More so, the charge-sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 CrPC. So, the order passed even by the High Court or this Court is subject to the order which would be passed by the trial Court at a later stage."
CRMC No.158/2017 c/w CRMC No.87/2017 Page14 of 18
11. In present case, if the facts and circumstances of the case leading involvement of the petitioners for various offences under the P.C. Act are meticulously scrutinized, then it would ipso facto reveal that the concern of the ACB was to unearth alleged large scale purchase of electric items worth Crores of rupees by the Power Development Department in various Districts including Rajouri District on highly exorbitant rates from open market without following any coda formalities, on some extraneous consideration. Legal position is no more res integra that registration of FIR upon an information disclosing cognizable offence is mandatory as per section 154 of Cr.P.C.
12. Constitution Bench of Supreme Court in Lalita Kumari Vs. Govt.
of U.P. and others (Writ Petition (Criminal) No.68 of 2008) reported in 2014 (2) SCC 1, while interpreting Section 154 Cr.P.C., observed that use of word "shall" in sub-sec.(1) of the aforesaid Section needs to be construed with its ordinary meaning of being mandatory character. The Court then proceeded to hold:
"49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning.
"Shall"
CRMC No.158/2017 c/w CRMC No.87/2017 Page15 of 18
50. The use of the word "shall" in Section 154(1) of the Code clearly shows the legislative intent that it is mandatory to register an FIR if the information given to the police discloses the commission of a cognizable offence."
13. The grounds taken that petitioners have retired from services, is not tenable; because once criminal offences has been committed, one has to pay for that; no matter accused has been retired. Further petitioners have relied upon certain documents during course of argument; this court is neither an investigating agency nor court of appeal; so these documents cannot be considered; petitioners are at liberty to place these documents before I/O, who shall consider these documents during course of investigation. Another argument of counsels for petitioners is that one impugned FIR has been lodged for two different Divisions one Kalakote and another Rajouri which is not permissible under law. This argument is also not tenable because Kalakote is Tehsil and falls under Rajouri District ; the counsel for petitioners have failed to show any law as to how ACB cannot conduct investigation of cases of financial irregularities of one District with regard to same funds, when offences have taken place of same nature though in different Division of same department. Further as it is evident from FIR there are serious allegations against the petitioners with regard to purchase of electric items of Rs.1,35,68,334 /- through various supply orders to different firms without following codal formalities as provided in financial code, in this way huge money of State exchequer is involved. Another argument that most of items have been purchased in emergency, for which no Tenders are required; this aspect of matter is based on facts, which cannot be considered CRMC No.158/2017 c/w CRMC No.87/2017 Page16 of 18 by this court; this aspect of matter requires detail investigation. After giving conscious reading of petitions and grounds mentioned, I am of view that petitioners have raised disputed question of facts which cannot be considered in these petitions.
14. It is not the case of petitioners that, there is some legal bar engrafted in any law for registration of FIR and investigation thereof. Lodging of FIR does not mean that offence/s under which it has been lodged stand proved; allegations levelled in the FIR are always subject to fair investigation. After investigation, FIR may culminate into filing of report under section 173 Cr.P.C. or under section 169 Cr.P.C. The investigation is underway and is at threshold stage. If the material/evidence collected during investigation is scanned at this stage, it clearly emerges out that prima facie evidence for constituting offences under the P.C. Act is available. Petitioners who were employees of department at relevant time and were entrusted to purchase electric items by inviting tender as per codal formalities; but accused persons by abuse of their official positions and in connivance with each other and proprietors of the supplier firms to confer undue benefit to them for their ulterior motives have caused a huge loss to the State exchequer. After preliminary inquiry, when truthfulness of allegations were proved, FIR No.29 of P/S VOJ dated 28/12/2016 has been registered in Vigilance Organization, Jammu under section 5 (1) (d) r/w 5 (2) of the J&K Prevention of Corruption Act Samvat 2006 and Section 120-B RPC.
CRMC No.158/2017 c/w CRMC No.87/2017 Page17 of 18
15. In view of what has been discussed above and law on the point, I am of the view that there is no case made out for exercising power under Section 561-A Cr.P.C. for quashing the impugned FIR. Hence, both the petitions are, accordingly, dismissed. Stay, if any, is vacated.
(Sanjay Kumar Gupta) Judge Jammu:
29.03.2019 Vijay NARINDER KUMAR SHARMA 2019.03.29 15:22 I attest to the accuracy and integrity of this document CRMC No.158/2017 c/w CRMC No.87/2017 Page18 of 18