Jammu & Kashmir High Court
Mubassir Latifi vs State Of J&K; And Ors. on 5 October, 2017
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Petition u/s 561-A of Cr. P.C. No.123/2016
MP Nos.2/2016 & 1/2016
Date of order: 05.10.2017
Mubassir Latifi Vs. State of J&K & others
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearing counsel:
For Petitioner/appellant(s) : Mr. Sunil Sethi, Senior Advocate with
Mr. Ravi Abrol, Advocate.
For respondent (s) : Mr. Raman Sharma, Dy. AG.
i) Whether to be reported in
Press Media : Yes/No
ii) Whether to be reported in
Digest/Journal : Yes/No
1) The petitioner, namely, Mubassir Latifi S/o Abdul Latif Balwan R/o Chinar
Enclave, Sidhra, Jammu, has filed the instant petition under Section 561-A of the Code of Criminal Procedure whereby he has craved the indulgence of this Court in quashing, FIR No.08 of 2016 dated 09.03.2016 registered against him by respondent No.2, Vigilance Organization, Jammu, through its Sr. Superintendent of Police for the commission of offence under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act Samvat, 2006 and 120-B of the RPC as also the proceedings being conducted in the said FIR.
2) The genesis of the FIR, numbered above, relates to an occurrence alleged to be spreading over the years 2005 and 2008. It has been stated in the FIR Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 1 of 14 that during the verification of the allegations levelled against the petitioner- Mubashir Latifi, SSP, detailed record of land and Roshani file was collected from the office of the Deputy Commissioner Jammu, Tehsildar Jammu Khas. After the scrutiny of the said record, it transpired that the kind of soil of land comprising Khasra No.119 min measuring 04 Kanals is State land and it has been shown to be in the cultivating possession of Sh. Nawab Din S/o Makhan in the year 1972 till 1999. In the year Kharief 2005, land to the tune of 01 Kanal 18 Marlas under Khasra No. 119 min has been recorded in the name of Abdul Latief Balwan- the father of the petitioner. As per the scheme relating to the vesting of ownership rights under Roshni Act, the beneficiary ought to have been in the physical and recorded possession of land in Rabi 2004. In the year 2008 a mutation in respect of the land measuring 01 Kanal out of Khasra No.119 min has been attested in favour of the petitioner under the Roshni Act, 2006. Similarly, out of the State land bearing Khasra No.520 shown as common path upto the year 2015, land measuring 9½ marlas has been mutated under the Roshni Act, in favour of the beneficiary, that is the petitioner, Mohd. Mubashir Latifi. On verification, it has been further found that vesting of ownership rights conferred upon the beneficiary in respect of land measuring 01 Kanal 9½ marlas out of Khasra No.119 min and Khasra No.120 (State land) situate at Sidhra for residential purposes vide order No.DCJ/HQA/Roshni/08/632-33 dated 26.03.2008 of Deputy Commissioner, Jammu and the mutation No.588/jeem dated 10.04.2008 Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 2 of 14 recorded and attested in favour of the petitioner (beneficiary) is in contravention of the law and the rules and these have been obtained by abuse of official position in connivance with the District Approval Committee, Jammu. The above said acts of omission/ commission on the part of the public servants concerned comprising the constituted committee and the beneficiary constitute offences u/s 5(1)(d) r/w 5(2) J&K P.C. Act Svt. 2006 and 120-B RPC.
3) The petitioner has assailed the action of the Vigilance Organization on the grounds, inter-alia, that the impugned FIR has been registered without following the due procedure established by law, as the respondent No.2 without verifying the authenticity or genuineness of the allegations, as alleged in the impugned FIR, straightway registered the impugned FIR and even these allegations do not constitute any offence muchless the offence punishable under Section 5(1)(d) read with 5(2) of the J&K Prevention of Corruption Act, Samvat 2006. It has further been pleaded that the ingredients of Section 5(2) of the J&K Prevention of Corruption Act are not made out in the case and the impugned FIR is being used as a tool of harassing and victimizing the petitioner notwithstanding the fact that the petitioner is not involved in any offence muchless the offence punishable under the aforesaid Sections. It has been further averred that respondent No.2, by succumbing to the pressure wielded by certain vested interests, has registered the impugned FIR which is an abuse of the process of law. Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 3 of 14 It has also been stated that as per the information of the petitioner the impugned FIR has been registered on the basis of some anonymous/pseudonymous complaint. The instructions/circulars of the Government provide that no action is required to be taken on anonymous complaints, irrespective of the nature of allegations and such complaints need to be simply filed but the respondents have acted in utter breach of circulars issued by the Government in this regard and have not only entertained the anonymous complaint but have also registered the impugned FIR without conducting any preliminary enquiry into the matter. It has been submitted further that the record relating to the preliminary investigation conducted in the case before lodging the FIR has to be sent to the respondent No.3 for confirmation and it is very difficult to conceive as to how the respondent No.3 has given consent to the lodging of the FIR in the instant case on the basis of false and frivolous complaint, which has been made the basis for the registration of the impugned FIR. It has been further stated that the principles relating to the exercise of jurisdiction under Section 561-A of the Code of Criminal Procedure (Section 482 of the Central Cr. P.C.) to quash complaints and criminal proceedings have been stated and reiterated by the Supreme Court in several landmark decisions.
4) Respondent Nos.1 and 2 have resisted and controverted the petition of the petitioner, primarily, on the grounds that the law is settled that the remedy Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 4 of 14 under Section 561-A Cr. P.C. can be invoked/pressed into service only in the following circumstances:-
(i) to pass orders in order to give effect to an order passed under Code of Criminal Procedure.
(ii) to prevent abuse of process of Court
(iii) to otherwise secure the ends of justice; and
(iv) to prevent miscarriage of justice.
It has been stated further that in the present case, keeping in view the allegations contained in the FIR, it can by no stretch of imagination be said that the case of petitioner falls within the ambit/contours of Section 561-A of the Cr. P.C. as enumerated above. The petition is premature and incompetent for the reason that prima facie the allegations in the FIR if assumed to be correct, constitute a cognizable offence. It has been further pleaded that the petitioner has made an effort to get the investigation scuttled at the very threshold. The Supreme Court has held in a number of cases that while exercising jurisdiction under Section 482 of the Cr. P.C. the court has only to ascertain whether the allegations made in the FIR do or do not disclose the commission of offences, and if it does, then it cannot be quashed at the initial stage. It has been further submitted that the petitioner has made an effort to project that the FIR is the outcome of malafides without impleading the person against whom the allegations are levelled as party respondent.
Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 5 of 14
5) Respondent No.3 has in his reply filed in answer to the petition of the petitioner stated that as per Rule 23 of J&K State Vigilance Commission Rules, 2013, the Directorate of Vigilance Organization is under a legal obligation to seek advice of the State Vigilance Commission in respect of all verifications, open or secret and Joint Surprise Checks conducted by it notwithstanding the final conclusions drawn. Rule 23 of the J&K State Vigilance Commission Rules, 2013 reads as under:
"Supervision in respect of Secret/Open Verifications and Joint Surprise Checks:- The Director of Vigilance shall keep the Commission informed about the secret and open verifications and Joint Surprise Checks being conducted by it and notwithstanding the final conclusion drawn, the outcome of such verifications and surprise checks shall be shared with the Commission by the Director, Vigilance. The Commission on examination of such reports may issue such directions as may be deemed appropriate to reach the rightful conclusion.
Provided that in order to ensure secrecy, all reports in case of secret verifications shall be marked as "Confidential" and addressed by name to the Chief Vigilance Commissioner."
It has been further stated in the objections that as per official records the Vigilance Organization has not sought the advice of the State Vigilance Commission in respect of the Verification conducted by it on the basis of which the impugned FIR has been registered in Police Station Vigilance Organization, Jammu and to that extent the Vigilance Organization has acted in violation of Rule 23 of J&K State Vigilance Commission Act, 2013. The Vigilance Organization was legally bound to submit the verification report for seeking appropriate directions from the State Vigilance Commission before registration of the FIR impugned, which it has failed to do.
Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 6 of 14
6) Heard and considered. 7) The law is that in exercise of the wholesome power vested in the High
Courts under Section 482 of the Criminal Procedure Code corresponding to Section 561 of the J&K Criminal Procedure Code, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.
8) In the law laid down by the Supreme Court in the case of State of Haryana and others v. Bhajan Lal and others, reported in 1992 Supp (1) SCC 335, Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 7 of 14 the Supreme Court has elaborately considered the scope of Section 482 Cr. P.C. In this case the Supreme Court considered the power of the High Court to quash the entire criminal proceeding including the FIR. The case under scrutiny arose out of an FIR registered under Sections 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. After noticing the earlier pronouncements on the subject, the Supreme Court detailed with lace certain categories of cases by way of illustration where power under Section 482 of the Cr. P.C. can be exercised to prevent the abuse of the process of the Court or secure the ends of justice. Paragraph 102 provides seven categories of cases wherein resort can be had to the provisions of Section 482 Cr. P.C. and these are extracted below:
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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 8 of 14
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 any 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."
9) Taking a cue from the law laid down above, which provides seven different sets of cases where authority can be wielded under Section 482 of the Code of Criminal Procedure (which as is reiterated and repeated here, corresponds to Section 561-A of the Jammu and Kashmir Criminal Procedure Code), what requires to be stated is that the instant case falls Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 9 of 14 under the ambit and scope of category No.6 which holds that 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, the High Court will be well within its reach to take recourse to the provisions of Section 561-A of the Cr. P.C. To appreciate the provision of the application of this category to the instant case in its proper perspective, the reply of the respondent No.3 assumes significance. The baseline of the reply of respondent No.3 is that as per Rule 23 of the J&K State Vigilance Commission Rules, 2013 (which has been reproduced herein-before), it is mandatory for the Director of Vigilance to keep the Commission informed about the secret and open verifications and Joint Surprise Checks being conducted by it and notwithstanding the final conclusion drawn, the outcome of such verifications and surprise checks has to be necessarily shared with the Commission by the Director Vigilance. It is within the authority and the jurisdiction of the Vigilance Commission to issue directions as may be deemed appropriate after the examination of such reports for arriving at a just and logical conclusion of the case. Respondent No.3 has emphatically stated in the reply that the Vigilance Organization acted not in harmony but in breach of Rule 23 of the J&K State Vigilance Commission Rules, 2013 vide which they were bound to submit the verification report before the Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 10 of 14 Commission for seeking further future directions before the registration of the FIR impugned. The violation of this mandatory provision has perpetuated an illegality which cuts at the very root of the case. On the strength of this rule it was incumbent on the part of the Director Vigilance to inform the Commission and share all verifications etc. with the Vigilance Commission, before the registration of the FIR. Hoodwinking and deluding this provision of the Rules has resulted in the violation of an inalienable right which the State Vigilance Commission had in the matter that is to seek the advice of the State Commission before registering the FIR. Rule 23 is an express bar fastened on the registration of any FIR. It has been given a complete go by in the instant case. This Rule has been violated with impunity and this on the face of it suggests that all is not well with the case. The aim and object behind incorporating Rule 23 supra appears to be to attach a semblance of fairness to the acts of omission and commission undertaken by the Vigilance Organization. It acts as a sieve for separating coarse from the fine parts of the loose matter. It is a safeguard against which hunting and is mandatory in nature and character.
10) Looking at the instant case from another perspective, the Office Memorandum (OM) No.Rev/S/310/2015 dated 29.01.2016, on the subject, "Verification No.38/2014 regarding probe into the illegal land transactions in Sunjwan/ Channi Himmat" issued by the Government of Jammu and Kashmir, Revenue Department, addressed to the Principal Secretary to Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 11 of 14 Government, Home Department, has an important bearing on the instant case and it is reproduced below verbatim et-literatim:
"The undersigned is directed to refer Principal Secretary to the Government, Home Department to his OM No.Home/Land/107/2015/ 6001 dated 23.10.2015 regarding the above mentioned subject and to say that Mr. Mubassir Latifi Ameer has not been found to have encroached the State Land, as indicated by Regional Director, Survey and Land Records Jammu in his letter 18-08-2015, because he has been vested with ownership rights under the substantive provisions of the J&K State Lands (Vesting of Ownership to the Occupants) Act, 2001 and the rules there-under. As regards the status of other occupants mentioned in the aforesaid report of Regional Director, Survey and Land Records, Jammu, the matter is being looked into by the Department for appropriate action under law.
Sd/-
(Shalini Raina) Under Secretary to Government Revenue Department"
11) The Office Memorandum cited above is a sequel to the fact that the petitioner has not encroached any State Land as indicated in the FIR. It also bears a testimony to the fact that the petitioner has been vested with ownership rights in the land, which is the subject matter of the FIR, under the substantive provisions of the J&K State Lands (Vesting of Ownership to the Occupants) Act, 2001 and the Rules framed thereunder.
12) The relevant excerpts of the order dated 26.03.2008 issued by the District Collector, Jammu, vide No.DCJ/HQA/Roshni/06/632-33, running under the head "Conferment of ownership rights to the occupants under the Jammu & Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001", Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 12 of 14 read that the case of the petitioner was put up before the Price Determination Committee constituted under Rule 9 for fixation of the rates under the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001 and the Committee approved the case and determined the price at a rate of Rs.10.00 Lacs per kanal. It provides further that the occupant produced the receipt after depositing an amount of Rs.442500/- for the land in Saddar Treasury, town Hall, Jammu, vide Voucher No.57/8829 on 18.02.2008, calculated and fixed as per Rule 13 of the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001. The operative portion of the aforesaid order reads as under:
"Thus under the powers vested upon me under Sec 8(3) of Jammu & Kashmir State Land (Vesting of Ownership Rights to the Occupants) Act, 2001, I, Hirdesh Kumar Singh, IAS, District Collector, Jammu, confer the ownership rights upon the said occupant for the land measuring 01 Kanal 09½ Marlas under
Khasra No.119, 120 Village Sidhra Tehsil Jammu, District Jammu, Tehsildar concerned is directed to attest the mutation in favour of the above said person as per Sec. 8(d) of the Act."
13) After the deposit of the money by the petitioner a mutation in respect of the land measuring 01 Kanal 09½ Marlas has been attested in his favour vide order dated 10.04.2008 of Tehsildar, Jammu, a copy whereof is attached to the petition as Annexure-E.
14) From a bare glimpse of the documents aforesaid what is brought to the bear is that the ownership rights with respect to the land detailed above vested in favour of the petitioner under the aforesaid Act and the procedure provided Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 13 of 14 thereunder. The petitioner fulfilled the condition for the grant of ownership right whereafter the Committee approved his case after the determination of the price that had to be paid for it. Assuming it for the sake of arguments but not conceding that the orders of the Committee or that of the District Collector or the Tehsildar, Jammu, were not in consonance with the provisions of the Act, the proper course to be adopted by the State was to challenge their validity before the competent authority and to afford the petitioner an opportunity of being heard in concinnity with the principles of natural justice. The petitioner could not be dragged under the provisions of the Prevention of Corruption Act in a case like the present one, which is predominantly civil in nature.
15) Viewed in the context of all that has been said and done above, the petition of the petitioner merits to be allowed, as a consequence of which FIR No.08 of 2016 dated 09.03.2016 registered by respondent No.2, Vigilance Organization, Jammu, through its Sr. Superintendent of Police against the petitioner for the commission of an offence under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act Samvat, 2006 and 120-B of the RPC, is quashed including the proceedings being conducted in the aforesaid FIR as against the petitioner.
(M. K. Hanjura) Judge Jammu 05.10.2017 Surinder Petition u/s 561-A of Cr. P.C. No.123/2016 MP Nos.2/2016 & 1/2016 Page 14 of 14