Jammu & Kashmir High Court - Srinagar Bench
Mohammad Yousuf Bhat vs State Of J&K; And Others on 16 August, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
SWP no.2426/2012 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 Date of order: 16.08.2018 Mohammad Yousuf Bhat v. State of J&K & ors Mohammad Yousuf Misgar & anr v. State of J&K & ors Shafaqat Hussain Sofi & ors v. State of J&K & ors Zaffar Hussain Patigaroo & ors v. State of J&K & ors Ab. Rashid Mir v. State of J&K & ors Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge Appearing Counsel:
For Petitioner(s): Mr A. H. Naik, Senior Advoate with Mr Zia Ahmad, Advocate For Respondent(s): Mr M. A. Rathore, AAG Whether approved for reporting? Yes/No
1. Writ petitions on hand, having akin cause of action, similar set of facts urged, generic gravamen groused, and alike relief supplicated, have been, therefore, clubbed to avert multiple, varied and inconsistent conclusions.
2. The fascicule of facts, necessitous and germane to comprehend the backdrop of the present writ petitions, based whereupon a case has been set in motion and the present legal process built, has its genesis and origin to the envisioning of the claim of the petitioners that their implication in the case FIR nos. 18 & 19 of 2005 and the sanction for prosecution, has ended in melancholy and uncertainty. The writ petitions are taken ad seriatim.SWP no.2426/2012 Page 1 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 SWP no.2426/2012
3. Petitioner, in the writ petition on hand, claims that he was holding the gazetted post in the Social Welfare Department and was inducted in the Time Scale KAS Cadre in the year 2003. He was posted as Assistant Commissioner, Development, Anantnag, in the Rural Development Department, in the year 2004-2005. An FIR bearing no.18/2005 in the police station Vigilance Organisation Kashmir, was lodged qua misappropriation of funds in execution of the electrification work of the Panchayat Ghar buildings in District Anantnag during the financial year 2004-2005. An inquiry was conducted by the Rural Development Department. It was found that, as maintained by the petitioner, he was not in any way involved in the said scandal and the Rural Development Department also conducted the verification of the works executed through a Committee consisting of the District Vigilance Officers, who found that the works in the said District had been executed as per the estimates. The verification conducted by the District Vigilance Officers was further got verified through a Committee of three IAS Officers constituted by the General Administration Department, which reported that the work has been executed in the said District as per the approved estimates.
The petitioner is aggrieved of and impugns the Government Order no.36-GAD (Vig) of 2012 dated 5th October 2012, SWP no.2426/2012 Page 2 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 according sanction to the prosecution of, inter alia, the petitioner for the commission of offences punishable under Section 5(1)(c), 5(1)(d) read with Section 5(2) of J&K Prevention of Corruption Act, Samvat 2006 and Section 420-A, 467, 120-B RPC in case FIR no.18/2005 Police Station Vigilance Organisation Kashmir, on the grounds detailed out in the writ petition on hand. He seeks the following relief:
a) The order no.36-GAD (Vig) of 2012 dated 05.10.2012 so far as it relates to grant of sanction for prosecution against the petitioner may be quashed and respondent government be directed to consider the entire material referred above and in consequence to same close the FIR against the writ petitioner in view of the peculiar circumstances of the case as same shall be in the interest of justice.
4. Respondent no.1, in his reply, avers that after completing the investigation in the case FIR no.18/2005, registered against accused, including the petitioner, the State Vigilance Organisation, Kashmir, recommended the case for grant of prosecution against the accused public servants including the petitioner herein for their involvement in misappropriation of funds in league with some Self Help Groups in execution of electrification works in Panchayat Ghar buildings in Anantnag District. On the basis of record and evidence collected during investigation by the Investigating Agency and on its thorough consideration and proper appreciation in the General Administration Department, the competent authority has in exercise of SWP no.2426/2012 Page 3 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 powers under Section 6 of the J&K Prevention of Corruption Act, Samvat, 2006, accorded sanction to the prosecution of the accused public servants including the petitioner vide Government Order no.36-GAD (Vig) of 2012 dated 5th October 2012, which does not suffer from any illegality.
5. Respondent no.2, in his reply, insists that the petitioner had released the funds to the tune of Rs.20.00 lacs on pick and choose basis in favour of three Block Development Officers of District Anantnag. He avers that the enquiry conducted by the Rural Development Department and by the Committee of IAS officers had no locus to look into the criminalities like abuse of official position as that domain under law falls entirely within the purview of respondent no.2. The respondent no.2 maintains that he conducted the investigation into the offences registered against the accused officers. The conclusion of the committee as regards physical verification has no bearing on the investigation conducted in the case. It is stated that Accountability Commission had taken suo moto cognisance of the matter and the comments of the Vigilance Organisation were also sought. The State Vigilance Organisation in its reply made it clear that the findings returned by the two committees did not ipso facto bar the criminal prosecution against the accused persons, who were found to have committed criminal misconduct. The SWP no.2426/2012 Page 4 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 respondent no.2 claims that the material collected during the course of investigation has established the omission and commissions committed by the petitioner in connivance with other accused persons, which was submitted before the competent authority, who after applying proper mind to the facts and circumstances of the case, granted sanction to launch the prosecution against the accused persons, including the petitioner.
6. Rejoinder has been filed by the petitioner. He states that the allegation levelled against him was baseless inasmuch as Rs.80.00 lacs and Rs.12.00 lacs placed at the disposal of the petitioner for the electrification work, were reallotted to the Block Development Officer, Qaimoh, for purchase and installation of the electric works. It is alleged that the criminal conspiracy was hatched by the Executive Engineer R&B (Electric) with the officials, which was got approved by the Secretary, Rural Development and despite drawing of the money, there was no installation of the electric items and the fans purchased were of inferior quality and the said works were allotted without free and fair competition. The FIR was lodged during execution of the work period and the Vigilance Organisation permitted the concerned officers to complete the work even during the investigation and the government constituted a team of three senior IAS Officers for holding the physical verification. The said Committee conducted the physical SWP no.2426/2012 Page 5 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 check of some of the Panchayat Ghars and reported that the work has been executed, but some electric items were found damaged by the children, which means that they found that the electrification work was found to have been executed. The said committee reported that the electric items were found to correspond with the numbers mentioned in the statements furnished by the two committees, but the said committee did not give report on quality of the items installed. It is also asserted that the prosecution sanction order stands issued by the General Administration Department, wherein the sanction has been granted against the petitioner by alleging that he released funds, which were transmitted to him by the Director for electrification in favour of the Block Development Officer, Qaimoh, for doing the electrification, but BDO Qaimoh has procured the substandard material. It is also alleged that the Director released an amount of Rs.20.00 lacs to ACD for taking up the electrification of 25 Panchayat Ghars in response to the requisition made and he asked three BDOs to take up electrification works in respective blocks. It is alleged that the said BDOs had to electrify 29 Panchayat Ghars when Shri Reyaz ul Haq had already drawn an amount of Rs.5.00 lacs for execution of work in 08 Panchayat Ghars and thus, it amounts to commission of offence. Further allegations in the sanction are levelled against the Director for receiving kickbacks SWP no.2426/2012 Page 6 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 through Bank accounts maintained and operated by brother and wife of the Director. It is also alleged that the three BDOs did not execute any work in the Panchayat Ghars but dumped the substandard material through the team of Engineering Experts and caused loss to the State Exchequer. According to the petitioner, the allegations levelled against him are contradictory in nature inasmuch as the allegations levelled in FIR contradict with the allegations levelled in the prosecution sanction and that it can be easily assessed and determined that no offence is made out against the petitioner and other higher ranking officers on the basis of such allegations and there is no evidence against them which would suggest that they have committed any offence. It is also contended that the respondents have not clarified the said position as also pleaded in writ petition but have simply levelled the allegations in the reply. The estimate prepared by the Executive Engineer R&B (Electric) was considered and approved by the Government for which a government order was issued and the action taken by the Government authorities has been found justified in investigation. The direction given by the Government to get the work executed through Self Help Groups has also been found justified in investigation and therefore, the subordinate authorities from the rank of the Director had no option but to obey and act upon the directions of the Government. Till the said SWP no.2426/2012 Page 7 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 orders were issued, the subordinate authorities had no role to play and, therefore, the question of the conspiracy in the said action does not arise. It is further submitted that the subordinate authorities from the rank of the Director, acted upon the directions and forwarded the funds to the lower cadre officers, i.e. BDOs and Engineering Staff for executing the works and as such the action of the Director and ACD is completely legal and justified in all terms and there is absolutely no question of any offence, being made out in the facts and circumstances of the case.
SWP no.1946/20137. Petitioner no.1 claims that he was working as the Assistant Director (Planning) in the Directorate of Rural Development Department, Kashmir, and has retired on superannuation. The petitioner no.2 was also working as Junior Assistant in the Directorate of Rural Development Department, Kashmir, and was posted in the office of the Block Development Officer, Dachnpora, Bijbehara during the period 2004-05. It is contended that the Government of Jammu and Kashmir, as a policy decision, had decided that certain funds available with the Government under 11th Finance Commission during 2004-05, would be utilized for electrification of the completed Panchayat Ghars in the State of Jammu and Kashmir and each Panchayat Ghar would be provided Rs.0.70 lacs for the said purpose duly SWP no.2426/2012 Page 8 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 estimated by the Executive Engineer R&B (PWED) Department. By the Government Order no.203-2004 dated 28.09.2004, an amount of Rs.1.00 crore was released in favour of the Director, Rural Development Department, Kashmir, for its utilization for the electrification of Panchayat Ghars, which were complete during 2004-2005 and each Panchayat Ghar was provided an amount of Rs.0.70 Lacs for the said purpose, duly estimated by the Executive Engineer (Electric) R&B (PWD). This was to be done with respect to the two Divisions of the State. An amount of Rs.1.00 crore was released vide Government order no.203-2004 dated 28.09.2004 in favour of the Director, Rural Development Department, Kashmir, for its utilization for the electrification of Panchayat Ghars, which were complete during 2004-2005. The said government order provided that the electrification work was to be got executed through the Self Help Groups (SHGs) duly registered with the Government and having specialisation in the field of the electrification, thereby leaving no scope to get the said electrification work done through some other agency/means, including inviting of tenders. The order further provided that for the electrification of each Panchayat Ghar, an amount of Rs.0.70 lac was earmarked and the said work was to be got done within the said amount, meaning thereby that the quality and quantity of the material to be used for the electrification work would SWP no.2426/2012 Page 9 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 depend upon the amount so allotted. In strict conformity with the Government Order no.203-2004 dated 28.09.2004, the Director, Rural Development Department, Kashmir, vide Order no.137-DRDK of 2004 dated 14.10.2004 and in compliance with the authorisation of the Administrative Department, the Self Help Groups, approved by the concerned Agencies of the Government, were to execute the works at the cost of Rs.0.70 lacs in every Panchayat Ghar and the funds provided had to be utilised for the purpose, for which those were provided. It was also directed that the work would be got executed as per the estimate prepared by the PWD (R&B) Electric Srinagar and approved by the Government. The order also provided that all the codal formalities had to be complied with. The orders of like nature, it is next averred, were also issued in other districts of Kashmir and Jammu Divisions and strictly in accordance with the Government Order no.203-2004 dated 28.09.2004, the electrification work of the Panchayat Ghars was allotted to the Self Help Groups. It is also stated that as per the procedure, the works after allotment were to be done by the concerned agency to which the work was allotted. However, the concerned officers of the agency, i.e. Rural Development Department, were supervising the work and ultimately it depended upon the final bills, which were to be prepared and in case there was any deviation or incompletion of the works, the same was to be completed o SWP no.2426/2012 Page 10 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 reported at the time of the final bills. It is also contended that so far the work was not completed, no final bill was prepared, and the work was executed as per the approved estimate. Insofar as the petitioners are concerned, they had no role to play in giving the certificates about the quality of any product. It is further submitted that even otherwise also, it is not permissible under law to give any specific name or brand to be supplied for the work, unless it is not specifically provided, though any brand having ISI mark has to be treated as approved as per the Government of India Regulations. The type/design of the work was also framed, approved and fixed by the Government itself and the petitioners could have not gone beyond that. While as the aforesaid works were still under process, all of a sudden on the basis of some complaint, it appears that police station Vigilance Organisation Kashmir had registered an FIR no.18/2005 on the allegation that the huge monetary benefit has been provided to some private contractors and great loss has been caused to the State Exchequer. Besides, it was also alleged thatmain service line of the Panchayat Ghars had not been laid and that the items of a particular mark/brand had not been used/installed in the works, as such, case under Section 5(2) of the Prevention of Corruption Act was registered. It is maintained that due care has been taken into consideration regarding the fact that for the purposes of preparation of the Estates and Type SWP no.2426/2012 Page 11 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 Designs, the estimates shall be got prepared from the Experts and thereafter the works are executed under the guidance of the Engineering Wing of the Department. So, consequently, the Government was requested and the Government got the type design and estimates prepared itself through Electric Wing, Kashmir. The estimates and the specifications of the material for the said works were also got prepared through the Electric Division of R&B Department Kashmir with respect to the Kashmir Division on the directions and guidance of the Government. These specifications were approved by the Government vide order no.203-2004 dated 28.9.2004 as is also approved from the order no.137-DRDK of 2004 dated 14.10.2004. As per the scheme of the Government, which was communicated vide Government order no.203-2004 dated 28.9.2004, the works were got executed through Self Help Groups, however, abundant caution was taken when the work was got executed under the supervision of the Rural Development Department. All the necessary care had been taken and all the works were to be executed within the requisite budgetary provision under the 11th Finance Commission Award and the Scheme was going to expire by March 2005, so the works were to be got executed by the end of March 2005. So all the efforts were made that all the works would be done as per the specifications and within the stipulated period of time.
SWP no.2426/2012 Page 12 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/20078. It is claimed that when the works were under execution, because of unexpected heavy snowfall in the month of November 2004, the huge losses were suffered in Kashmir and even certain villages got washed away because of the snow in Waltengo, District Anantnag, and consequently the pace of the work got affected and the material, which was stocked at various places, could not be utilized within time. It is also contended that it appears that certain vested interested persons wanted to blow out of this proportion and appears to have made the false and frivolous complaints on the basis whereof it appears that two FIRs 18 & 19 of 2005 P/S VOK, got registered. The Directorate of Rural Development Department vide Order no.798- DRDK of 2005 dated 19.9.2005, had asked the Vigilance Officers of the Department to make thorough verification and in the meanwhile, the SSP (ABR) Vigilance Organisation, Kashmir, vide no.SSP(ABR) 2005-PA/1130- 54 dated 12.7.2005, communicated that there was no bar if the electrification works were executed in the Panchayat Ghar buildings chosen for such works. Accordingly, the instructions of the VOK were passed on the Assistant Commissioner Development, Anantnag and Block Development Officers, for compliance. By Government Order no.128-RD of 2005 dated 17.6.2005, Shri Hafiz Ullah Qadiri, Additional Secretary to Government, Rural Development Department and an Executive Engineer to be SWP no.2426/2012 Page 13 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 nominated by the Power Development Department, were appointed as Enquiry Officers, to enquire into the alleged financial irregularities committed by various drawing and disbursing officers of Rural Development Department and use of substandard material by them particularly in the Districts of Anantnag and Baramulla in electrification of the Panchayat Ghars during the year 2004-2005 out of the 11th Finance Commission Award. The said Committee, according to the petitioners, submitted an interim enquiry report, which appears to have pointed certain deficiencies and subsequently in terms of the Government order no.1456-GAD of 2005 dated 25.11.2005, a Committee, comprising of three IAS Officers, was constituted for verifying the findings of the Enquiry Report regarding electrification of the Panchayat Ghars of Districts Anantnag and Baramulla. The committee of three IAS Officers appear to have gone through the detailed report and subsequently submitted the report regarding the findings of the enquiry report qua the electrification of Panchayat Ghars. The committee had come to the conclusion that during the physical checks of some of the Panchayat Ghars in District Anantnag and Baramulla to ascertain the veracity of the physical verification reports of the two committees, constituted by the then Director, Rural Development Department, the number of electric items were found to correspond with the numbers mentioned in SWP no.2426/2012 Page 14 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 the Physical Verification Reports furnished by the said committees. The said committee members, it is asserted, had also submitted another report on 18.12.2005, wherein they had said that the items had corroborated with the reports submitted by the two committees. It is averred that from the report and the verification made by the two Committees, it has been found and ascertained that the proper electrification of the Panchayat Ghars in both the Districts had been made as per the estimates. It is contended that in the verifications/enquiries conducted by the departmental vigilance officers, it has been reported and even corroborated by the committee of senior three IAS officers that more than 90% works stand already executed. Even the Accountability Commission took suo moto cognisance of the matter and the said Commission also indicted the Government and in fact as the Government that the concerned minister of the Rural Development Department be also made party to the proceedings. The Accountability Commission also appears to have come to the conclusion that in case the scheme was bad, it was bad with respect to other Panchayat Ghars of the entire State and it cannot be limited to two districts only, because by doing so, it may appear to be based on mala fides. After taking suo moto cognisance of the matter and coming to the aforesaid conclusion, the officers/officials of the whole State were arrayed for the enquiry and the same is presently SWP no.2426/2012 Page 15 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 going on. Arraying of different set of the officers/officials as accused by the Accountability Commission, came to be challenged before this Court in a writ petition, which is pending adjudication. It is claimed that no case is made out against the employees of the Rural Development Department and they had no role to play in the execution of the electrification works in the Panchayat Ghars. It was as per the Government policy, guidelines and the specifications as laid down in the Government order that the electrification work was got executed through Self Help Groups, named by the Government and not by any private contractor and that too as per the specifications approved by the Executive Engineers (R&B) PWD and Electric, Srinagar. The petitioners claim that it appears that even on the basis of no case, the Vigilance Organisation is adamant to make some of the officers/officials of the Rural Development Department as scapegoats for none of their faults, as a result whereof, some of the officers of the Rural Development Department have already filed a writ petition, challenging the grant of sanction for launching prosecution against them. Despite the fact that the Accountability Commission had also in its preliminary report, it appears, made an opinion that there appears to have been error in the policy of the Government regarding the electrification of the entire State and not with respect to two Districts only, but the respondent State only SWP no.2426/2012 Page 16 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 confined it to two Districts in order to make certain employees including the petitioners as scapegoats. The petitioners also maintain that it appears that certain high ups in the Government wanted to harass the petitioners and help some other employees and were adamant to derail the departmental enquiry and make such a situation that the petitioners are harassed by going ahead with FIRs and unnecessarily involving the petitioners and other employees of the two Districts only on one count or the other. Though from all counts, in no way a criminal offence is made out, but still unnecessarily the petitioners and the employees of the two Districts are harassed. As per the Business Rules, it is provided that in case any criminal challan is to be filed against an employee, the opinion of the Law Department has to be sought. It appears that an opinion had been sought from the Law Department and the Law Department, after going through the details of the FIR and other material placed before it, including enquiry reports, had given its opinion whether the departmental enquiry needs to be conducted. Though the department had initially started the process to formally appoint an enquiry officer with a technical officer and subsequently appointing three IAS officers and on the basis of the report submitted by the said Committee, opinion of the Law Department appears to have been sought and the Law Department opined that it is a fit case for departmental enquiry and not SWP no.2426/2012 Page 17 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 for prosecution. However, despite all this, the respondents are adamant to file challan against the petitioners only in order to harass them and put that challan as Damocles sword lurking on their heads. It is also stated that the petitioner no.1 has already retired on superannuation.
9. The petitioners, on the strength of the case set up, entreat for the following relief:
a) Writ of certiorari, quashing FIR bearing no.18 & 19 of 2005 registered by the Police Station Vigilance Organization Kashmir, so far it related to the petitioners;
b) Writ of mandamus, commanding the respondents to give the promotions to the petitioners to which they are entitled including all the consequential benefits;
c) Writ of mandamus, commanding the respondents either to drop the proceedings against the petitioners or to conduct a department enquiry as already partly conducted;
d) Mandamus, commanding the respondents to release all the service benefits to the petitioners of service benefits in any manner whatsoever under the garb of pendency of the FIR against them.
10. Reply has been filed by the respondent no.4 (Commissioner, Vigilance Organisation). He insists the State Vigilance Organisation, Kashmir, registered two cases bearing FIR nos.18 & 19 of 2005 in P/S VOK, against some officers/officials of the Rural Development Department, Kashmir and private persons respectively, so as to investigation an allegation that the accused in furtherance of the criminal conspiracy hatched with the Self Help Groups defrauded the Government exchequer in the process of the execution of the electrification works in the SWP no.2426/2012 Page 18 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 Panchayat Ghar buildings in District Anantnag and Baramulla. It is insisted that during the course of investigation it had revealed that during the year 2004-05, the Government had earmarked Rs.1.00 crore for the electrification of Panchayat Ghar Buildings in District Anantnag and Rs.1.50 crores for District Baramulla under 10 and 11th Finance Commission Award. These funds were kept at the disposal of the Director, Rural Development, Kashmir. On receipt of the funds, the said Director, vide communication no.DRDK-PLG/7381 dated 3.8.2004, requested the Executive Engineer (Electric) R&B Division, Srinagar, for preparation of the estimate and had also expressed his desire to get the works executed through his agency. The Executive Engineer, on receipt of the communication, prepared the typical estimate showing Rs.70,000/- as cost for the electrification of each Panchayat Ghar building. On receipt of the said typical estimate by the Director, the same was forwarded to the Secretary to Government, Rural Development, J&K. The Government, after approving the estimate, placed Rs.1.00 crore at the disposal of the Director, Rural Development, for the electrification of the Panchayat Ghars. The funds were allotted vide Government order no.203 of 2004 dated 28.9.2004, which were in addition to the funds already allotted for the purpose. The Government, while allotting the funds, had asked the Director to get the work of the SWP no.2426/2012 Page 19 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 electrification executed through the duly registered Self Help Groups, having specialization in the electrification within the financial year 2004-05, so that the quality work is done. It is maintained that the Government had referred the case to the Law Department for its opinion and the Law Department had advised to hold the departmental enquiry against the accused persons. The Government, vide letter dated 14.10.2010, sought the comments of the Vigilance Organisation on the opinion of the Law Department. In its reply to the Government, the State Vigilance Organisation had made it clear that the findings returned by the two committees did not ipso facto bar the criminal prosecution against the accused officials, who were found to have committed the criminal misconduct punishable under the provisions of Prevention of Corruption Act and Ranbir Penal Code, as the criminal proceedings and other proceedings are all together distinct and different. The committees constituted to conduct the physical verification of the items used for the electrification of the Panchayat Ghar Buildings had no locus to look into the criminalities, like abuse of the official position etc., as that question under law falls entirely within the purview of the investigating agency, who conducted the investigation into the offences registered against the accused officials under the J&K P.C. Act. It is also averred that a specific issue to verify the items used for electrification works was referred SWP no.2426/2012 Page 20 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 to the committees, but on the other hand the issues relating to the fabrication of the documents, non-existent works, excess drawal of money, abuse of the official position, the criminal conspiracy etc., were investigated and brought on record on the basis of the evidence surfaced during the investigation. The standard of the probe, the mode of the enquiry and the rules governing the enquiry and the investigation are entirely distinct and different. The issue under enquiry and the investigation against the accused official, were independent of one another and are enquired and investigated into separately. The conclusion of the committee with regard to the physical verification, as such, has no bearing on the investigation conducted, in the case and therefore, the Government, while taking into consideration the comments of the State Vigilance Organisation, Kashmir, coupled with the evidences granted sanction for launching prosecution against the petitioners and other inservice accused public servants vide Government order no.36-GAD (Vig) of 2012 dated 5.10.2012 and the order no.37-GAD(Vig) of 2012 dated 05.10.2012.
11. To controvert what has asserted by the respondents in their reply, the petitioners have filed the rejoinder, in which they maintain that wherever the works were not completed because of the filing of the FIR, those works were also completed with the permission of the Vigilance SWP no.2426/2012 Page 21 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 Organisation. It is also stated that had not the FIR been filed, the works could have been already completed and due to filing of the FIR, works for some time could not be accomplished.
SWP no.2098/201212. Petitioners, in the writ petition on hand, state that the Government of Jammu and Kashmir, as a policy decision, had decided that certain funds available with it under 11th Finance Commission during 2004-05, would be utilized for electrification of the completed Panchayat Ghars in the State of Jammu and Kashmir and each Panchayat Ghar would be provided Rs.0.70 lacs for the said purpose duly estimated by the Executive Engineer, Electric and R&B (PWD) Departments. This was to be done with respect to two Divisions of the State. It is stated that vide Government Order no.203 of 2004 dated 28.09.2003, an amount of Rs.1.00 crore was released in favour of the Director, Rural Development Department, Kashmir, for its utilization for the electrification of the Panchayat Ghars, which were complete during 2004-2005 and each Panchayat Ghar was provided uniform amount of Rs.0.70 lacs for the said purpose. The said work of electrification was to be got executed through Self Help Groups duly registered with the Government. The Director, Rural Development Department, Kashmir, issued Order no.137- SWP no.2426/2012 Page 22 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 DRDK of 2004 dated 14.10.2004, accorded sanction to the engagement of seven Self Help Groups for electrification of Panchayat Ghar buildings constructed in District Anantnag and Pulwama. The petitioners claim that the allegations made in the FIR no.19/2005 P/S VOK, is not only baseless and concocted but are also against the guidelines laid down in the government order, on the basis whereof, the work was got done and in case there was any laxity that was on the part of the Government which had issued the order and not on the part of the petitioners, who had only implemented the order in its true and correct perspective. Since there was no lapse or laxity on the part of the petitioners in the execution of the electrification works in the Panchayat Ghars and they having been unnecessarily bundled in the FIR, therefore, they approached the Government and the Director, Rural Development Department and explicated their position and role in the matter, which forced the Government and the Director, Rural Development Department, to constitute a departmental Vigilance team with the direction to have the inspection of the works and submit its detailed report. The Departmental Vigilance Team made a detailed inspection and after verifying all the Panchayat Ghars, submitted a detailed report of each Panchayat Ghar to the Director, Rural Development Department, on prescribed format supported with videography. The committee constituted by SWP no.2426/2012 Page 23 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 the Director, testified it beyond doubt that the work has been executed as per the sanctioned estimate and approval by the Administrative Department. After submission of the report by the committee constituted by the Director, Rural Development Department, the Government also constituted a three-member Committee of high ranking IAS Officers, which after conducting proceedings, also gave a detailed report, testifying thereby the report given by the earlier committee and falsified the socalled allegations made by the Vigilance Organisation.
13. It is also averred that even the Law Department made it clear to the respondents to initiate the departmental enquiry only because there was no criminal liability involved in the case. According to the petitioners, if the impugned FIR no.19/2005 is taken on its face value, it per se does not constitute any offence inasmuch as it is neither feasible nor proper for the Government to make the specification of a particular company or item of a particular company to be used for the execution of any work. The only thing, which is to be mentioned as per the Government guidelines, is whether a particular item is having an ISI mark and of required brand and make. The allegation levelled in the FIR that service line was not laid is also bald allegation and without any basis inasmuch as the service line is always installed when the electrification work within the house/building is complete and unless the inner SWP no.2426/2012 Page 24 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 work is not finalised coupled with the fact that in absence of the watch and ward of the Panchayat Ghar, the line cannot be installed. The inner electrification work of the Panchayat Ghars, in the present case, was not complete as yet, therefore, there was no question of laying the service line beforehand, more so for the installation of the service line, it is necessary that first of all the department has to execute an agreement with the Electricity Department and only then service line can be installed. The petitioners also aver that the Accountability Commission has already taken cognisance of the matter and the said Commission in its wisdom had come to the conclusion that it is basically the Government policy, which is faulty and questionable. The petitioners claims that they have not done anything mala fidely and they have not committed any offence, irregularity or illegality. Whatever has been cone, the same has been done on the basis of the Government policy. In case, what the Accountability Commission feels that the Government policy is bad, then the liability will not be shifted to the petitioners because the petitioners had implemented the policy of the Government and if the policy is bad, then it is the responsibility of the Government and not of the petitioners. The petitioners claim that there is nothing wrong in the implementation of the policy by the petitioners, but there is some mischief with the Government policy itself, for which the petitioners cannot SWP no.2426/2012 Page 25 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 be held responsible, thereby rendering the impugned FIR liable to be quashed. Even otherwise, when the Accountability Commission is seized of the matter and has powers of making investigation/ enquiries and the Vigilance Organisation has the mandate of making the investigation, then the two parallel enquiries cannot go together. Since the one enquiry which is headed by the Commission is presided over by a Retired Judge of the High Court and another enquiry conducted by a police officer, therefore, there is every possibility of being conflicting conclusions. In case the Accountability Commission will come to the conclusion that there is a criminal liability against the petitioners or any other person, only then an FIR can proceed further and a charge sheet will be filed. Since the Accountability Commission has started the investigation/ enquiry, that enquiry is to be allowed to go and the enquiry to be conducted by the Vigilance Organisation in a way will amount to scuttling the enquiry to be made by the Commission. Conducting of the two enquiries, according to the petitioners, is prohibited under the Article 20 (2) of the Constitution of India. Petitioners, on the edifice of the case set up, implore the following relief:
a) Certiorari, quashing the FIR bearing No.19 of 2005 registered by the police station Vigilance Organiation Kashmir, so far it relates to the petitioners;
b) Mandamus, commanding the respondents not to proceed ahead with the investigation of the case registered under SWP no.2426/2012 Page 26 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 FIR no.19/2005 P/S VOK or produce challan against the petitioners in the court of law.
c) Mandamus, commanding the respondents to release all the service benefits to the petitioners including the promotions etcetera and not to deprive them of such service benefits in any manner whatsoever under the garb of the pendency of the FIR against them.
14. Reply has been filed by the respondent no.4, vehemently resisting the writ petition. It is insisted that the petitioners have caused huge loss to the State Exchequer by abusing their official position. It is stated that in terms of the government Order no.203-RD of 2004 dated 28.09.2004, an amount of Rs.1.00 crore was released in favour of the Director, Rural Development, Kashmir, for electrification of the Panchayat Ghar Buildings @ Rs.0.70 lacs per Panchayat Ghar. The work for the same was to be executed through the registered Self Help Groups. The respondent also insists that FIR no.19/2005 was registered in the police station VOK, but on the basis of reliable source and during the course of the investigation, it surfaced that most of the works with respect to the electrification of the Panchayat Ghar buildings, were found either non-existent or substandard. On the basis of the documentary evidence, it became crystal clear that the officials of the District Rural Development Department, Baramulla, by abuse of their official position committed bungling and inflicted loss to the tune of Rs.35,84,442/- to the State Exchequer and the case was accordingly closed as challaned against the delinquent SWP no.2426/2012 Page 27 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 officers/officials including the petitioners. The Block Development Officers of various Blocks were found to have issued the physical verification certificate qua the electrification works of the Panchayat Ghars in their respective blocks. The test check conducted during the investigation revealed that the works were not executed as per the specification. The BDOs have wilfully facilitated drawl of undue amount by giving the certificates against the non-existent or substandard works. The certificates were, however, found issued by them in absence of any works register, work done estimates or work done bills vetted by the Engineering Staff. Moreover, the accused persons, including the petitioners, had failed to execute the works of the electrification of the Panchayat Ghars in District Baramulla in accordance with the typical estimate and the other conditions provided by the Governmetn order and instead released the payment illegally and fraudulently thereby causing loss to the State Exchequer. According to the respondent, taking cognisance by the Accountability Commission is a matter of record.
15. Rejoinder has been filed by the petitioners, strenuously controverting the averments made by the respondent no.4. It is claimed that the Law Department has opined to hold a departmental enquiry to see as to whether there is any irregularity, the responsibility of the erring official shall be fixed. The Law Department, having gone through the SWP no.2426/2012 Page 28 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 entire record also in its wisdom had come to the conclusion that there is no illegality, committed and that is why it was held to have a departmental enquiry and not to go ahead with the FIR as the same will have the effect of harassing the officers. Even the General Administration Department had also agreed with the opinion of the Law Department for holding the departmental enquiry. As per the Business Rules, where legal issue is involved, the matter has to be referred to the Law Department and the opinion of the Law Department has to be obtained. The Vigilance Organisation had been bent upon to harass the petitioners by filing the FIR. After completion of the investigation, the matter was referred to the Government. The General Administration Department vide letter dated 14.10.2008 had made it very clear that the physical verification of various items used for electrification of Panchayat Ghars had been done and it reported that the electrification work has been completed and nothing has been mentioned about shortfall or inferior quality of the items. The General Administration Department had also given an opinion that it would be advisable to go for departmental enquiry instead of criminal prosecution. The FIR, as maintained by the petitioners, is only by way of harassment inasmuch as there is nothing material and again in view of the fact that most of the officials have already retired and filing of challan shall be by way of harassment to the said SWP no.2426/2012 Page 29 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 employees who have rendered the services with great dedication in challenging the atmosphere.
SWP no.2099/201216. Petitioners, in the instant writ petition, beseech quashment of FIR no.18 of 2005 registered by Police Station VOK, insofar as it relates to them, with a direction to respondents not to proceed ahead with the investigation of the case registered under FIR no.18/2005 P/S VOK or produce challan against the petitioners in the court of law. The petitioners also prays for a direction to respondents to release all the service benefits to the petitioners including the promotions etcetera and not to deprive them of such service benefits in any manner whatsoever under the garb of the pendency of the FIR against them.
17. Reply has been filed by the respondents 1, 2&4, vehemently resisting the writ petition. According to the respondents, the investigation has established the abuse of the official position by the accused petitioners and as a sequel thereto, they have been rightly arrayed as accused in the case. It is maintained that the committee, constituted to conduct the physical verification of the items, used for electrification of the Panchayat Ghars had no locus to look into the criminalities like abuse of official position etcetera, as that domain under law falls entirely within the purview of respondent no.4, who conducted the investigation into the SWP no.2426/2012 Page 30 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 offences registered against the accused officers under the Prevention of Corruption Act. It is averred that the J&K Accountability Commission does not take away or abrogate the powers of the investigation invested in the State Vigilance Organisation. The presence of the proceedings before the Accountability Commission do not, thus, cause any impediment as alleged or impose ban/prohibition for investigation and subsequent criminal prosecution against the accused public servants. The suo moto cognisance by the State Accountability Commission does not create a legal bar for the State Vigilance Organisation to pursue the case and seek the prosecution sanction in respect of the accused public servants.
18. Rejoinder has been filed by the petitioners, controverting the averments made in the Reply by the respondents.
19. I have heard the learned counsel for the parties and considered the matter.
20. In terms of the Government order no.203-RD of 2004 dated 28.09.2004, sanction was accorded to the release of funds to the tune of Rs.100.00 lacs (Rupees one crore only) under the 11th Finance Commission Award in favour of the Director, Rural Development Department, Kashmir, for utilization on account of the electrification of Panchayat Ghar buildings (wherever completed) during 2004-05 and authorisation of funds so released including available funds with Rural Development Department, Kashmir, under 11th SWP no.2426/2012 Page 31 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 Finance Commission Award during 2004-05 for electrification of the completed Panchayat Ghars @ Rs.0.70 lacs per Panchayat Ghar, estimated by the Executive Engineer, R&B (PWD) Srinagar. The Government order no.203-RD of 2004 dated 28.09.2004 envisions that the release/authorisation of Rs.1.00 crore was subject to the condition that the Director, Rural Development Department, Kashmir, would ensure that the electrification work is executed through Self Help Groups, duly registered, having specialization in electrification, so that the quality work is done. The Director in terms of the Government order no.203-RD of 2004 dated 28.09.2004, was also asked to ensure that the electrification job is completed during the year 2004-05, which is the last year of 11th Finance Commission Award.
21. Consequent upon the authorisation of the Administrative Department, conveyed vide Government order no.203-RD of 2004 dated 28.09.2004, for the execution of the electrification of the Panchayat Ghar buildings through registered Self Help Groups, the Director, Rural Development Department, Kashmir, vide Order no.137- DRDK of 2004 dated 14.10.2004 (Annexure P-7 to SWP no.2426/2012), accorded sanction to the engagement of seven Self Help Groups of Civil and Electrical Engineers, registered by the Registrar of Firms J&K Government and sponsored by the Director, Employment, J&K, for SWP no.2426/2012 Page 32 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 electrification of all the Panchayat Ghar buildings constructed in District Anantnag and Pulwama under 10th and 11th Finance Commission Award as per the estimate of Executive Engineer, R&B (Electric Wing) Srinagar at a cost of Rs.0.70 lacs, per Panchayat Ghar building. The Order no.137-DRDK of 2004 dated 14.10.2004, issued by the Director, Rural Development Department, Kashmir, also provides that the electrification works was to be got executed under the overall supervision of the Executive Engineer, REW of the District, who had to constitute a committee of the well-versed engineers for execution of the electrification in all the Blocks of the District for the speedy completion of the job as per the specifications within the financial year and also to ensure utilization of the funds earmarked for the purpose and save the Department from losing the funds under the 11th Finance Commission Award. The Order no.137-DRDK of 2004 dated 14.10.2004 issued by the Director, Rural Development Department, Kashmir, also provides that the distribution of the Panchayat Ghars to the Self Help Groups would be done by the Executive Engineer, REW. The Order no.137-DRDK of 2004 dated 14.10.2004, as is discernible from its bare perusal, has laid certain conditions while according sanction to the engagement of Self Help Groups, which include that the job will be completed during financial year without carrying any liability to the next financial year;
SWP no.2426/2012 Page 33 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007that the funds will be utilized for the purpose for which released without any deviation; that the works shall be got executed as per the specifications as provided in the estimate prepare by the Executive Engineer R&B (Electric Division) Srinagar without any deviation; that all codal formalities shall be fulfilled before execution of the works; that the executing agency will enter into an agreement with the Department to the effect that the works entrusted shall be got completed within the prescribed period within the approved cost and in case of any deviation, the penalty as deemed fit by the department shall be imposed on the executing agency.
It may not be out of place to mention here that the Self Help Groups, seven in number, as is unequivocally evident from the Order no.137-DRDK of 2004 dated 14.10.2004, issued by the Director, Rural Development Department, Kashmir, have been nominated and engaged by the Director, Rural Development Department. In such circumstances, the present petitioners had no role to play in engagement of the aforesaid Self Help Groups.
22. Assistant Director (Plg) in the Directorate of Rural Development, Kashmir, vide letter no.DRDK/Plg/16222 dated 28.01.2015 (Annexure P-8 to SWP no.2426/2012) requested the Assistant Commissioner, Development, Anantnag, to furnish the list of the Panchayat Ghars constructed in the District out of 10th and 11th Finance SWP no.2426/2012 Page 34 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 Commission Award, which had not been electrified as per the estimate of the R&B Division (Electric) Srinagar, so that the funds were released for execution of the electrification of the said Panchayat Ghars. The Assistant Commissioner, Development, Anantnag, in terms of letter no.ACDA/10638-51 dated 07.02.2015 (Annexure P-9 to SWP no.2426/2012) informed the Director, Rural Development Department, Kashmir, that the Block Development Officers, Assistant Engineers, and Assistant Executive Engineers of the District, have furnished the information in a Review Meeting that in all there are 125 un-electrified Panchayat Ghars in the District. Here again a pause is must for the reason that a Review Meeting had been held by the field functionaries, in which the information has been furnished as regards the Panchayat Ghars, where the electrification work was to be undertaken. So, the electrification work vis-à-vis the Panchayat Ghars has not been undertaken in a hush-hush manner but in an open and translucent manner and meetings with the field functionaries had been held.
23. By order bearing no.DRDK/Plg/17936-38 dated 09.03.2005 (Annexure P-11 to SWP no.2426/2012) the Director, Rural Development Department, Kashmir, accorded sanction to the release of the additional funds amounting to Rs.20.00 lacs under the 11th Finance Commission Award in favour of the Assistant Commissioner, Development, Anantnag, for SWP no.2426/2012 Page 35 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 utilization during 2004-05, on the approved items of the works. In followance of the aforesaid allotment order, the Assistant Commissioner, Development, Anantnag, issued a letter bearing no. ACDA / Elect / 2004-05 / 12134-39 dated 14.03.2005, requesting the concerned Block Development Officers to execute the works strictly consistent with the conditions contained therein, including that the work be executed in accordance with the approved cost and the sanctioned estimates; that the works be executed through Self Help Groups; that the works be executed under the continuous supervision of the concerned VLW/JE and to be monitored by the AEE/BDO; that the Panchayat Ghars be properly handed over to the VLW with complete inventory after electrification with the necessary certification from the technical staff. An order no.133-ACDA of 2005 dated 25.03.2005, was also issued by the Assistant Commissioner, Development, Anantnag, releasing Rs.20.00 lacs in favour of the Block Development Officers, Kulgam, D.Pora and Pahloo and they were asked to utilize the funds for the purpose for which the same was released without any diversion or re-appropriation and physically check the work for the sanctioned estimates approved type design and complete all codal formalities before release of payment. It was also made clear that the material of the approved specification should only be accepted as per the SWP no.2426/2012 Page 36 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 contract. Subsequently various orders were made after getting approval from the higher authorities.
24. The case of the respondents is that from the reliable sources, an information was received in the State Vigilance Organisation, Kashmir, that in execution of the electrification work of the Panchayat Ghar Buildings in District Anantnag during the financial year 2004-05, the Government officials and the contractors had hatched a conspiracy to cause loss to the State Exchequer by preparing the exorbitant estimates and purchasing the substandard material for completing the electrification work. On receipt of this information, a joint surprise check, according to the respondents, was conducted and the allegations levelled in the source report were prima facie established. Accordingly, a case FIR no.18/2005 under Section 5 (2) of Prevention of Corruption Act read with Section 120-B, 167-A, 420-A RPC, was registered in Police Station VOK and the investigation was taken up. During the course of the investigation, it has been prima facie established that the accused persons including the petitioners in connivance with each other, have defrauded the State Exchequer to the tune of Rs.37,57,474/- in District Anantnag and Rs.35,84,442/- in District Baramulla, thus, succeeded in obtaining the pecuniary advantage illegally and dishonestly. The investigation of the said case FIR no.18/2005 has been closed as proved against the accused SWP no.2426/2012 Page 37 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 persons including the petitioners on the strength of the evidence, oral as well as the documentary collected and in the course of the investigation, a case for commission of offences punishable under Section 5(1)(c), 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act and Section 420-A, 467, 120-B RPC, was made out against the accused public servants and non-officials. The investigation of the case was submitted to the Government for accord of sanction. Then the authorities after examining the matter vide Government order no.36-GAD (Vig) of 2012 dated 05.10.2012, accorded sanction for launching the prosecution against the accused persons including the petitioners.
25. As regards the case FIR no.19/2005 P/S VOK, the respondents maintain that from the reliable sources, an information was received by the State Vigilance Organisation, Kashmir, that the officers of the District Rural Development Department, Baramulla, have committed a large scale bungling in the electrification of the Panchayat Ghar Buildings during the financial year 2004-05 and under a well-knit conspiracy and misuse of their official position conferred huge and undue monetary benefit on the private contractors and themselves and concomitant loss to the State Exchequer. The Government had allotted funds to the tune of Rs.1.50 crores for electrification of the Panchayat Ghar Buildings constructed SWP no.2426/2012 Page 38 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 out of the funds allotted under the 10th and 11th Finance Commission Award in District Baramulla during the year 2004-05 and kept at the disposal of the Director, Rural Development Department, Kashmir, who further kept the same at the disposal of Assistant Commissioner (Development) Baramulla. Although, the Assistant Commissioner, Baramulla, allotted the work of execution of the electrification on paper to three Self Help Groups, namely, M/s S. Construction, M/s Bismillah Construction and M/s G. Construction Companies, yet the same was shown superficially with dishonest intention to all these works to one, namely, Mushtaq Ahmad Ganie S/o Abdul Salam Ganie R/o Hariparigam, Tral, who actually was not a contractor, but a government employee. The allotment was done without any tendering process and no method was used to allot the work on the competitive rates. According to the respondents it has also been learnt that the supervision of the electrification work was entrusted to the Block Development Officers instead of the Executive Engineer, REW, Baramulla or any other expert engineer. The payment had been made to the so-called contractor without execution of the work as per the specification laid down in the physical estimate, which had been got prepared through Executive Engineer (Electric) R&B Division, Srinagar. On receipt of this information, a case FIR no.19/2005 under Section 5(2) of the Prevention of SWP no.2426/2012 Page 39 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 Corruption Act read with Section 120-B RPC was registered in Police Station VOK and the investigation was taken up. During the course of the investigation, according to the respondents, it has been established that the accused persons including the petitioners in connivance with each other, have committed offences punishable under the Prevention of Corruption Act. The investigation of the said case has been closed as proved against the accused persons including the petitioners on the strength of the evidence, oral as well as the documentary collected and in the course of the investigation, a case for commission of offences punishable under Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B RPC, was made out against the accused public servants and non-officials. The investigation of the case was submitted to the Government for accord of sanction. Then the authorities after examining the matter vide Government order no.37-GAD (Vig) of 2012 dated 05.10.2012, accorded sanction to launch the prosecution against the accused persons including the petitioners.
26. It is important to mention here that the Director, Rural Development Department, Kashmir, vide Order no.435- DRDK of 2005 dated 07.06.2005, directed conducting of a thorough probe into the allegations levelled by the VLW's Association Rural Development Department. It is soon thereafter that case FIR no.18/2005 dated 17.06.2005 P/S SWP no.2426/2012 Page 40 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 VOK under Section 5(2) P.C. Act 2006 read with Section 167-A, 120-B, 420-B RPC and case FIR no.19/2005 under Section 5(2) P.C.Act read with Section 120-B, 420 RPC, were lodged, with regard to the financial irregularities allegedly committed in electrifying the Panchayat Ghars in Districts of Anantnag and Baramulla.
27. Germane it is to mention here, that during the course of investigation, Senior Superintendent of Police (ABR) VOK, vide communication no.SSP(ABR)2005-PA/1139-54 dated 12.07.2005, addressed to Block Development Officers of District Anantnag, has informed that the Organisation has already done videography of the most of the Panchayat Ghar Buldings as regards the electrification works and it is required of all law abiding citizens in general and the Block Development Officers in official capacity, in particular, not to alter or temper with the evidences as it stood on 18.06.2005. However, it was is intimated by the Senior Superintendent of Police, (ABR) VOK that there is no bar if the electrification works are executed in the Panchayat Ghar buildings, chosen for such works, but it was enjoined upon all the concerned that before taking up such works at each Panchayat Ghar buildings, the office of SSP should be informed in advance and such works are brought into the notice of the organisation. The said instructions were passed on to the Assistant Commissioner, Development, Anantnag and Block Development Officers for compliance SWP no.2426/2012 Page 41 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 vide letter no.DRDK/E-Complaint/6421-34 dated 12.07.2015. The aforesaid instructions were carried out in District Anantnag. It was also seen that the same treatment was adopted by the Block Development Officers of District Baramulla. In order to ascertain the ground reality in the interest of public and administration, it was felt to constitute two Committees, headed by Departmental Vigilance Officers to verify the same in conformity with the estimate devised by the Electric Division of R&B Department. Accordingly, vide Order no.798/DRDK of 2005 dated 19.09.2005, issued by the Director, Rural Development Department, Kashmir, sanction was accorded to the constitution of the two Committees for District Baramulla and Anantnag. The said committee were asked to submit their report after on the spot verification within a period of seven days whether the electrification of the Panchayat Ghars has been done in conformity with the approved estimate prepared by the Electric Division of R&B Department.
28. The J&K State Government through Rural Development Department also by Government Order no.128-RD of 2005 dated 17.06.2005, appointed Shri Hafiz Ullah Qadri, KAS, Additional Secretary to Government, Rural Development Department, and an Executive Engineer to be nominated by the Power Development Department, as Enquiry Officers, who were asked to collectively enquire into the SWP no.2426/2012 Page 42 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 alleged financial irregularities committed by various drawing and disbursing officers of the Rural Development Department and use of substandard material by them particularly in the districts of Anantnag and Baramulla in electrification of Panchayat Ghars during the year 2004- 2005 out of the 11th Finance Commission Award. The enquiry officers were asked to submit their report to the Government within a period of seven days along with their recommendations.
29. The subject-matter of the case was directly taken up by the J&K Government through General Administration Department, which in supersession of Government order no.1424-GAD of 2005 dated 22.11.2005, appointed a Committee, comprising three IAS Officers, viz. Director, Rural Development Department; Deputy Commissioner, Budgam; and Vice Chairperson, Lakes & Waterways Development Department, to verify the findings contained in the physical verification report submitted by the Committee constituted by the Director, Rural Development Kashmir, vide order no.793-DRDK of 2005 dated 19.09.2005.
30. The Committee, so constituted, visited both the Districts of Anantnag and Baramulla and verified the physical verification reports of the committees in respect of some of the Panchayat Ghars on random basis. The committee constituted by the Director, Rural Development SWP no.2426/2012 Page 43 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 Department, Kashmir, vide Order no.798-DRK of 2005 dated 19.09.2005, had physically verified various items and their numbers vis-à-vis the estimates of the electrification of the Panchayat Ghars provided to them. Both the committees expressed their inability to verify the quality and assess the cost of these items in absence of association of any technical expert with them. The committee, accordingly, conducted the physical check of the electrification of some of the Panchayat Ghar Buildings in the Districts of Anantnag and Baramulla, listed in the physical verification reports, furnished by the committee, constituted by the Director, Rural Development Department, Kashmir, vide order no.798-DRDK of 20054 dated 19.09.2005. The Committee verified the findings of the two committees and physically checked some of the Panchayat Ghars, listed out in the physical verification reports of the earlier committees. The Committee made it clear that apparently the number of the electric items were found to correspond with the numbers mentioned in the statements furnished by the earlier two committees. In that view of the matter, the report submitted by the Committee of three IAS officers, does not support what has been alleged against the petitioners in in the FIR nos. 18 & 19 of 2005 P/S VOK and the Sanction granted by the respondents for prosecution of the petitioners. The report of three IAS Officers has, therefore, proved as Achilles' heel SWP no.2426/2012 Page 44 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 for the respondents as against the petitioners. Nevertheless, this adage does not clinch the matter here as a lot needs discourse.
31. The Law Department of the J&K Government is an important Department of the State of Jammu and Kashmir. All the departments of the J&K State are required, as enjoined by the J&K Government Business Rules, to obtain the opinion from the Law Department on the issue(s) concerning the statutory rules, notifications or issuance of an order(s) or to sanction under a statutory power the issue of any rule, bye-law, notification or any order by a subordinate authority. Not only this, all the Administrative Departments, including respondents herein, have to consult the Law Department on the construction of the Statute(s), Act(s), Regulation(s), Statutory Rule(s), and even as regards the issuance of the order(s) and the notification(s). The Administrative Departments are also required to consult the Law Department on any general legal principles arising out of any case or institution or withdrawal of any prosecution at the instance of any Administrative Department. Even in the cases of preparation of important contracts entered into by the Government, the Administrative Departments have to consult the Law Department.
32. In the present case as well, the Commissioner of Vigilance, J&K, Srinagar, vide letters bearing no. SVO-FIR-18/2005- SWP no.2426/2012 Page 45 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 K-575-76 dated 15.01.2008 and no.SVO-FIR-19/2005-K- 577-78 dated 15.01.2008 on the subject of the case FIR no. 18/2005 and 19/2005 P/S VOK, submitted the Final Investigation Report to the General Administration Department, Government of Jammu and Kashmir. The Final Investigation Reports, so submitted by the Commissioner of Vigilance, J&K, was referred to the Law Department for the legal opinion, so that further course of action was taken on the edifice of the opinion, to be given by the Law Department. The legal opinion was given by the Law Department, which was conveyed by the General Administration Department, Government of Jammu and Kashmir, to the Commissioner of Vigilance, J&K, vide letter no.GAD(Vig)-04-SP/2008-II dated 14.10.2008. What are the contents of the said communication, are germane and imperative as it deals with and sets at rest the whole controversy in hand once for all, thus, imperative to be reproduced in verbatim herein after:
"I am directed to refer to your letters No.SVO-FIR- 18/2005-K-575-76 dt: 15.01.2008 & SVO-FIR-19/2005-K-577- 78 dt: 15.01.2008 regarding subject cited above and to say that Final Investigation Reports submitted by the Vigilance Organisation in aforementioned cases were referred to Law Deptt for their legal opinion which has been obtained and read as under:
"There are two impediments in granting sanction for prosecution against the accused persons as sought by the Vigilance Organization. Firstly, the two Committees constituted by Director Rural Development Kashmir for physical verification of various items used for electrification of Panchayat Ghars have reported that electrification has been completed and they did not mention anything about the quality SWP no.2426/2012 Page 46 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 of items used in such electrification. The third Committee constituted by the government vide G.O. No.1456-GAD of 2005 in order to verify the findings of the committees constituted by Director Rural Development has also found that the number of electrification items used correspond to the numbers mentioned in the statement by the above said two committees. The second impediment is the case pending before the Accountability Commission. Though the said complaint has been stayed by the Hon High Court, yet it would be advisable to avoid duplicity of actions in the matter.
In view of these factors, it would be advisable for the department to go for departmental inquiry instead of criminal prosecution."
In view of above, you are requested kindly to furnish your comments on abovementioned opinion of the Law Deptt."
33. The above extracted excerpts of the communication no.GAD(Vig)-04-SP/2008-II dated 14.10.2008, are indubitable and conclusive, somewhat hits the nail on the head. The Law Department of J&K has explicitly enjoined upon the General Administration Department and Vigilance Organisation that once two Committees had been constituted for the physical verification of various items used for the electrification of the Panchat Ghars, which had reported that the electrification had been completed, there was no occasion or reason to grant sanction for prosecution against the accused persons, including the present petitioners, by the Vigilance Organisation. Once that being the position, the impugned sanction granted for prosecution of the petitioners is vitiated and liable to be quashed, as such. The Law Department has even categorically advised the respondents not to go for criminal SWP no.2426/2012 Page 47 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 prosecution but to initiate departmental inquiry against the accused, including the present petitioners. In such circumstances it was advisable for the respondents to initiate the departmental inquiry instead of granting the sanction for prosecution of the petitioners.
34. It is pertinent to mention here that the impugned sanction for prosecution has been granted without considering all the relevant material, including the opinion of the Law Department and, therefore, the impugned sanction for prosecution against petitioners, is bad in law. The law is settled that the consideration of the material implies application of mind. The order of sanction must ex facie unveil that the sanctioning authority had considered the evidence and other material placed before it. It has to be proved in every case that the material was placed before the authority and mind was applied. If the sanctioning order, ex facie disclosed that all the relevant material was placed before it and it is further discernible that all such material has been perused and inference can be drawn that the sanction has been granted in accordance with law.
35. Section 197 of the Code of Criminal Procedure, Svt. 1989 (1933 A.D.) which deals with the prosecution of the Judges and the Public Servants for the offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duty, lays down that no court shall take cognizance of such offences except with the SWP no.2426/2012 Page 48 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 previous sanction either of the Central Government or the State Government, as the case may be.
36. Section 6 of the Prevention of Corruption Act, however, contains a special provision for sanction for the prosecution for a few specific offences, including the offence punishable under Section 161 RPC. It provides as under:
"6. Previous sanction necessary for prosecution. -
(1) No Court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 or section 167-A of the State Ranbir Penal Code, Samvat 1989 or under sub-section (2) or sub-section (3) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction--
(a) in the case of a person who is employed in connection with the affairs of the State and is not removable from his office save by or with the sanction of the Government.
(b) in the case of any other person of the authority competent to remove him from his office.
(c) in the case of person who is or has been a member of the Council of Ministers other than the Chief Minister, or the Governor on the advice of the Chief Minister;
(d) in the case of person who is or has been a Chief Minister or the Governor;
(e) in the case of a person who is or has been a member of either House of the State Legislature of the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be.
(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (I) should be given by the Government or any other authority, such sanction shall be given the Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed;
(3) Notwithstanding anything contained in the Code of Criminal Procedure, Samvat 1989-
(a) no finding sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of any error, omission or irregularities in. the sanction required under sub-section (1), unless in the opinion of that Court, a failure of Justice has in fact occasioned thereby;
(b) no Court shall stay the-proceeding under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error. Omission or irregularity has resulted in a failure of Justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in SWP no.2426/2012 Page 49 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 relation to any interlocutory order passed in any enquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether any error. Omission or irregularity in, such sanction has occasioned or resulted in a failure of Justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation. - For the purposes of this section-
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
37. Section 6 of the Prevention of Corruption Act, thus, places a bar on the Court from taking cognizance of the offences specified in Subsection (1) against the Public Servants unless the prosecution for those offences has been sanctioned either by the Central Government, if the person who has allegedly committed the offence is employed in connection with the affairs of the Union Government and is not removable from his office except with the sanction of the Central Government, or by the State Government if that person is employed in connection with the affairs of the State Government.
38. Subsection (2) of Section 2 of the Prevention of Corruption Act, Svt. 2006, envisions that a "public servant" means a public servant as defined in Section 21 of the State Ranbir Penal Code and shall include a person who is or has been a member of either House of the State Legislature or a member including a Minister of the State of the Council of Ministers or every person who is or has been under the employment of the Government whether on permanent, SWP no.2426/2012 Page 50 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 temporary or work-charge basis or every officer, servant or member, by whatever name called, of a Corporation or of a corporate or other body which is established by or under an Act of the State Legislature or of the Parliament in force in the State. "Public Servant" under the provisions of Section 21 of the Ranbir Penal Code, Svt. 1989, denotes a person falling under any of the descriptions following namely:-
First. - Every Civil servant of the State; Second. - Every Commissioned Officer in the military, naval or air force of India;
Third. - Every Judge including any person empowered by law to discharge, whether by himself or as a member of anybody of persons, any adjudicatory functions;
Fourth. - Every officer of a Court of justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court; and every person specially authorized by a Court of Justice to perform any of such duties;SWP no.2426/2012 Page 51 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007
Fifth. - Every juryman, assessor or member of a panchayat assisting a Court of Justice or public servant;
Sixth. - Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
Seventh. - Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
Eighth. - Every officer of Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice or to protect the public health, safety or convenience; Ninth. - Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of [the Government] or to make any survey, assessment or contract on behalf of [the Government] or to execute any revenue-process, or to investigate or to report on any matter affecting the pecuniary interests of [the Government] or to make, authenticate or keep any document relating to the pecuniary interests of [the Government], or to prevent the infraction of any law for the protection of the pecuniary interests of [the Government], and every officer in the service or pay of [the SWP no.2426/2012 Page 52 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 Government], or remunerated by fees or commission for the performance of any public duty;
Tenth. - Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;
Eleventh. - Every servant under the Government of India who is posted, and when he is performing his legitimate duties, within the State;
Twelfth. - Every servant of the Department of Devasthan;
Thirteenth. - Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
Fourteenth. - Every officer or servant employed by a Municipal Committee, Town Area Committee, Notified Area Committee, Panchayat, Co-operative Society or Co-operative Bank whether for the whole or part of his time, and every member of such committee, society or bank;
Fifteenth. - Every officer or servant, and every member (by whatever name called) of a corporation SWP no.2426/2012 Page 53 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 engaged in trade or industry or of any other autonomous body which is established by an Act of the State Legislature or of a Government company as defined in any law for the time being in force in the State.
Sixteenth. - Every officer or servant including medical or paramedical staff of the Sher-i-Kashmir Institute of Medical Sciences Srinagar.
39. The word "public servant" used in Section 21 of the Ranbir Penal Code is, therefore, of a wider amplitude and is not used in the sense in which a servant is defined in the statutory rules or in Section 126 of the State Constitution.
With the broadening of the dimensions in the present democratic setup, the Government has also entered in the commercial field and that by itself will not mean that any employee or an officer of a government undertaking would not be a public servant within the meaning of Section 21 of the Penal Code. But if the "public servant" is not an employee of either the Central Government or the State Government, sanction is not to be given by the authority competent to remove him from the office held by him.
40. Once a person, against whom the prosecution is to be launched, is found to be covered by the definition of the public servant and the requirement to that extent is satisfied, the next question whether he is to be prosecuted SWP no.2426/2012 Page 54 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 or not is considered either by the Central Government or by the State Government and if the person is neither the employee of the Central Government nor of the State Government, the question of sanction is considered by the person who is competent to remove him from the office held by him.
41. Sub-section (2) of Section 6 of the Prevention of Corruption Act is clarificatory in nature inasmuch as it provides that if any doubt arises whether the sanction is to be given by the Central Government or the State Government or any other authority, it shall be given by the appropriate Government or the authority, which was competent to remove that person from the office on the date on which the offence was committed. This rule is a departure from the normal rule under which the relevant date is the date of taking cognizance, as laid down by the Supreme Court in R.S. Nayak v. A. R. Antulay AIR 1984 SC 684.
42. From a perusal of Section 6 of the Prevention of Corruption Act, it would appear that the Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that public servant is to be prosecuted or not. Since the Section clearly prohibits the Courts from taking cognizance of the offences specified therein, it envisages that the Central or the State Government or the other authority has not only the right SWP no.2426/2012 Page 55 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction.
43. In Gokulchand Dwarkadas Morarka v. The King, AIR 1948 PC 82, it was pointed out that:
"The sanction to prosecute is an important matter, it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seen to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case."
44. In Basdeo Agarwalla v. Emperor AIR 1945 FC 16, it was pointed out that the sanction under the Act is not intended to be, nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness. The Supreme Court in State through Anticorruption Bureau, Government of Maharashtra, Bombay v. Krishanchand Khushalchand Jagtiani, (1996) 4 SCC 472, while considering the provisions of Section 6 of the Prevention of Corruption Act held that one of the guiding principles for the sanctioning authority would be the public interest and, therefore, the protection available under Section 6 of the Act cannot be said to be absolute.
SWP no.2426/2012 Page 56 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/200745. It is to be kept in mind that the sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act, which affords protection to the government servants against the frivolous prosecutions. [See: Mohd. Iqbal Ahmed v. State of Andhra Pradesh, AIR 1979 SC 677].
46. Sanction is a weapon to ensure the discouragement of the frivolous and vexatious prosecutions and is a safeguard for the gullible but not a shield for the guilty.
47. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, the material and the evidence have been considered by the sanctioning authority. Consideration implies the application of mind. The order of the sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all the relevant facts were considered by the sanctioning authority. [See also:
Jaswant Singh v. The State of Punjab, AIR 1958 SC 12; State of Bihar & anr v. P. P. Sharma 1991 Cr.L.J. 1438 (SC)].SWP no.2426/2012 Page 57 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007
48. Since the validity of the "sanction" depends on the applicability of the mind by the sanctioning authority to the facts of the case as also the material and the evidence collected during the investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether the prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant the sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is portrayed that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution. Same is the position in the present case. The sanctioning authority, while sanctioning the prosecution by the impugned sanction order, has remained oblivious to the fact that the Law Department has categorically made it clear that it would be sagacious for the department to go for departmental inquiry instead of the criminal prosecution.
SWP no.2426/2012 Page 58 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007Once the Law Department has categorically asked the respondents not to sanction the prosecution against the petitioners, there was no occasion or reason for the respondents to issue or pass the order of sanction against the petitioners. The impugned sanction, in that view of matter, suggests and portrays confliction and confusion in issuance thereof. Having said so, impugned sanction is bad in the eye of law and liable to be quashed, as such.
49. It is imperative to mention here that indubitably the judicial process should not be an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing the process, lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. It is equally well settled that summoning of an accused in a criminal case is a serious matter and the order taking cognizance by the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto.
50. The broad guidelines for quashing of the criminal prosecution have laid down by the Supreme Court in State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335. The Supreme Court has elaborately considered the scope and ambit of the Section 482 Cr. P.C. SWP no.2426/2012 Page 59 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 and Article 226 of the Constitution of India, in the context of quashing the proceedings in the criminal investigation. After noticing various earlier pronouncements, the Supreme Court enumerated certain categories of the cases by way of illustration, where the power under the Article 226 of the Constitution can be exercised to prevent the abuse of the process of the Court or to secure the ends of justice. Paragraph 102, which enumerates the seven broad guidelines and categories of the cases where the power can be exercised under Article 226 of the Constitution and 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 SWP no.2426/2012 Page 60 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 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."
51. A three-Judge Bench of the Supreme Court in State of Karnataka v. M. Devenderappa and another, 2002 (3) SCC 89, had an occasion to consider the ambit of Section 482 Cr.P.C. The Supreme Court has laid down that the authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the SWP no.2426/2012 Page 61 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 abuse. It further held that the Court would be justified to quash any proceeding if it finds that the initiation/ continuance thereof amounts to the abuse of the process of the Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6:
"6......All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
52. Further in paragraph 8 following was stated:
SWP no.2426/2012 Page 62 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007"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)."
53. In Sunder Babu and others v. State of Tamil Nadu, 2009 (14) SCC 244, the Supreme Court was considering the challenge to the order of the Madras High Court. It was contended before the Supreme Court that the complaint filed was nothing but an abuse of the process of the law and the allegations were unfounded. The prosecuting agency contested the petition, taking the stand that a bare perusal of the complaint discloses commission of the alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. The Supreme Court after referring to the judgment in Bhajan Lal's case (supra), held that the case fell within Category 07. The Supreme Court quashed the proceedings.
54. In another case of Priya Vrat Singh and others v. Shyam Ji Sahai 2008 (8) SCC 232, the Supreme Court relied on SWP no.2426/2012 Page 63 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 Category 07 as laid down in State of Haryana v. Bhajan Lal (supra). In the above case the Allahabad High Court had dismissed an Application for quashing the proceedings under Section 494, 120-B, and 109 IPC and Section 3 and 4 of the Dowry Prohibition Act. After noticing the background facts and parameters for exercise of the powers under Article 226 and Section 482 Cr. P.C., the Supreme Court has held that Article 226 and Section 482 Cr. P.C. do not confer any new power on the High Court. It only saves the extraordinary and inherent powers which the Court possessed. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of extraordinary and inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The Courts, therefore, have extraordinary and 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 SWP no.2426/2012 Page 64 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist).
55. While exercising powers under Article 226 of the Constitution, the Court does not function as a court of appeal or revision. Extraordinary jurisdiction under Article 226 though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of the justice and if any attempt is made to abuse that authority so as to produce injustice, the Court, it be noted, has power to prevent the 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 thereof amounts to abuse of the process of the Court or quashing of these proceedings would otherwise serve the ends of justice. An aggrieved party can invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, being the extraordinary jurisdiction and the vastness of the powers naturally impose considerable responsibility in its application. All the same, the High Court has got power and sometimes duty in appropriate cases to grant reliefs, SWP no.2426/2012 Page 65 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 though it is not possible to pinpoint what are the appropriate cases, which are to be left to the wisdom of the Court exercising the powers under Article 226 of the Constitution of India. [Vide: Km. Hema Mishra v. State of U.P. and others (2014) 4 SCC 453].
56. The powers, as noticed above, possessed by the High Court under Section 561-A of the Code, are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See: Janata Dal v. H.S.Chowdhary, AIR 1993 SC 892; Raghubir Saran (Dr.) v. State of Bihar, AIR 1964 SC 1; and Minu Kumari v. State of Bihar, AIR 2006 SC 1937] SWP no.2426/2012 Page 66 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007
57. Inherent power, given the above discourse, given to the High Court under Section 482 Cr. P.C. is with the purpose and object of advancement of the justice. In case the solemn process of the Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by the Supreme Court in State of Haryana v. Bhajan Lal (supra). Judicial process is a solemn proceeding, which cannot be allowed to be converted into an instrument of the operation or harassment. When there is material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court or for that matter this Court will not hesitate in exercise of its jurisdiction under Section 561-A Cr. P.C. to quash the proceeding under Category 07 as enumerated in State of Haryana v. Bhajan Lal (supra), which is to the following effect:
"(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."
58. Based on the holistic consideration of the facts and circumstances summarised in the foregoing paragraphs, the present case appears to be one where Categories 01, 03 SWP no.2426/2012 Page 67 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007 and 05 of the illustrations given in the case of State of Haryana v. Bhajan Lal (supra) are clearly applicable.
59. Having regard to what has been said and done above, I think that there is necessity to exercise jurisdiction under Article 226 of the Constitution of India. Hence, the impugned order no.36-GAD (Vig) of 2012 dated 05.10.2012 insofar as it relates to the grant of sanction for prosecution against the petitioners, is quashed. As a corollary, impugned FIRs bearing no.18 & 19 of 2005 registered by the Police Station Vigilance Organization Kashmir, are quashed. The respondents are directed to release all the service benefits to the petitioners. Disposed of.
SWP no.127/201760. Petitioner claims that he came to be appointed in the department as Warder on 15.11.1984 and is holding the post of S. G. Warder and is posted at District Jail Jammu.
61. The subject-matter of the instant case does not even remotely relate to the subject-matter of the aforementioned clubbed writ petitions.
62. Registry to detag and list the instant matter independently.
( M. K. Hanjura ) Judge Srinagar 16.08.2018 Ajaz Ahmad SWP no.2426/2012 Page 68 of 68 c/w SWP no.1946/2013 SWP no.2098/2012 SWP no.2099/2012 SWP no.127/2007