Jammu & Kashmir High Court - Srinagar Bench
Abdul Qayoom Khan And Another vs State Of J&K And Others on 6 December, 2022
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
OWP no.1020/2015
Reserved on: 17.11.2022
Pronounced on: 06.12.2022
Abdul Qayoom Khan and another
.......Petitioner(s)
Through: Mr M. A. Qayoom, Advocate
Mr M. Tufail, Advocate
Versus
State of J&K and others
......Respondent(s)
Through: Mr Mr Irfan Andleeb, Dy.AG for
respondents 1 to 3
Mr Areeb Kawoosa, & Mr Atir Kawoosa,
Advocates for respondent no.4
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this writ petition preferred under Article 226 of the Constitution of India, petitioners seek quashing of FIR no.16/2014 under Section 5(1)(d) read with 5(2) of the P.C.Act and 120-B, 467, 468 and 471 RPC, registered in police station VOK Srinagar. Alternatively, petitioners prays for a direction to respondents to book respondent no.4 in the aforesaid FIR and array him as accused in the case and proceed against him in the matter, in which respondents have been proceeded against petitioners.
2. Reply/objections have been filed by respondents.
3. I have heard learned counsel for parties and considered the matter.
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4. Learned counsel for petitioners has stated the allegation of making illegal appointment of 12 Grading Attendants has been set at by rest by a Coordinate Bench of this Court in writ petition, being SWP no.352/2012 c/w SWP no.354/2012, while disposing of the same and holding that there has been no violation of any law while making engagement/appointment inasmuch as the Chairman of SFC had, with fair approach and on the basis of material placed before him by competent authority, i.e., Managing Director of SFC, and with a view to achieve the object of Scheme, accorded approval which is fair and legal and as a consequence of which set-aside the disengagement orders. According to learned counsel, once the Writ Court in aforementioned writ petitions has given a positive finding that engagements had not been in violation of any law, impugned FIR is liable to be quashed as its continuation would amount to sheer abuse of process of law.
5. In view of case set up by parties, it would be appropriate to go through impugned FIR, which for facility of reference is reproduced hereunder:
"Verification conducted by Vigilance Organization Kashmir into the allegations of engagement/appointment of close relatives and others for extraneous and under-hand considerations by Shri Abdul Qayoom Khan (IFS) has revealed that Shri Abdul Qayoom Khan as Managing Director, J&K State Forest Corporation has engaged twelve persons as Grading Attendants on casual basis vide Order No. 238 of 2010 dated 26.4.2010 and then regularised them as Class IV employees vide Order No.468 of 2010 dated 30.6.2010. Verification has revealed that as per Order No.238 of 2010 dated 26.4.2010, then Divisional Manager Saw Mills Shalteng, Srinagar was asked to conduct a survey for engagement of suitable persons experienced in Khatamband manufacturing for timber based "Common Facility Centre" at Shalteng Srinagar. A total of 13 applications addressed to Hon'ble Forest Minister were received. The said applicants were purportedly shown subjected to work experience test by then Page 2 OWP no.1020/2015 Divisional Manager Saw Mills Shri Ghulam Ahmad Mir and as per his report conveyed vide his No.41/DM/SM/SFC dated 17.4.2010, the applicants have been found possessing necessary experience. Accordingly, 12 among them were engaged as Grading Attendants on casual basis after seeking approval from Hon'ble Minister for Forest (Chairman SFC). AS per the Order No.468 of 2010 dated 30.6.2010, the above mentioned 12 Grading Attendants have been subjected to performance test by then Divsiional Manager Saw Mills Shjri Ghulam Ahmad Mir on 28.6.2010 and as per his report conveyed vide his No.237/DM/SM dated 29.6.2010, the applicants had successfully qualified the same. Accordingly all the 12 applicants were confirmed against the Class IV vacancies of Grading Attendants and DDO's were directed to make necessary entries in their service books vide Order No.468 of 2010 dated 30.6.2010. Verification has revealed that filling of Class IV vacancies by persons having experience in Khatamband manufacturing had not been advertised and the engagement/appointments have been made on pick and choose manner. No criteria whatsoever had been adopted for appointment except possession of experience in Khatamband manufacturing. The applicants have not produced even certificates like state subject, qualification, date of birth etc. Nothing has been found on record to suggest that the applicants were subjected to any experience test in Khatamband manufacturing as projected by the Divisional Manager Saw Mills vide letter no.41/DM/SM/SFC dated 17.04.2010 or any performance test as projected by him vide his letter No.237/DM/SFC dated 29.06.2010. the dispatch numbers of both these letters do not match with the dispatch register in the office of Divisional Manager Saw Mills as another letter of same dispatch No.237 with some other subject was found in the record of the said office and the letter No.41/DM/SM/SFC dated 17.04.2010 also appears inserted in the dispatch register after mutation. It was further revealed that all the Grading Attendants were subsequently transferred to territorial Divisions of SFC by the aforementioned Managing Director questioning the objective of their appointment against sanctioned posts of Common Facility Centre at Saw Mill Division Shalteng Srinagar.
During verification it was found that then Managing Director had sought approval of the Hon'ble Forest Minister (Chairman of SFC) vide his U.O.No.01/MD/SFC dated 17.04.2010 on the basis of misrepresentation of facts and false documents that the appointees were subjected to work experience test and were found possessing necessary experience in Khatamband manufacturing. It was also that the appointment of Grading Attendants had not been placed before the Board of Directors in its 61st Meeting held on 03.06.2009 wherein creation of "Khatamband Raw Material Bank" and establishment of "Common Facility Centre" have been discussed and approved.
Verification has also revealed that one of the 12 Grading Attendants Shri Farooq Ahmad Changa is the cousin of the then Managing Director Shri Abdul Qayoom Khan and two more appointees namely Riyaz Ahmad Sheikh and Intikhab Ahmad Lala had been employees of the Unit M/s Zum Zum Cement Products registered in the name of sister-in-law of the said Managing Page 3 OWP no.1020/2015 Director. The above mentioned 12 Grading Attendants have been paid a total salary of Rs.23,08,728/- upto March, 2012.
By acting in the aforesaid manner, Abdul Qayoom Khan, the then Managing Director State Forest Corporation and Ghulam Ahmad Mir, the then Divisional Manager Saw Mills Shalteng Srinagar and others have by abuse of their official position as public servants conferred undue pecuniary advantage upon 12 beneficiaries under a well-knit conspired plan.
The aforementioned acts and omission on the part of Abdul Qayoom Khan, then Managing Director SFC, Ghulam Ahmad Mir, then Divisional Manager Saw Mills Srinagar and others / beneficiaries constitute offences punishable u/s 5(1)(d) r/w 5(2) P.C.Act and 120-B, 467, 468, 471 RPC.
Accordingly, a case under aforementioned provisions of law is registered in P/S VOK....."
6. The petitioner seeks exercise of powers as provided under Article 226 of the Constitution of India to quash the impugned verification. To quash or not to quash an FIR under and in terms of Article 226, the Supreme Court in Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra and others, reported in 2021 SCC Online SC 315, has, inter alia, laid down following principles of law:
"23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/ chargesheet is filed under Section 173 Cr.P.C., while dismissing/ disposing of/not entertaining/not quashing the criminal proceedings/ complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
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vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;"
7. It is seen that the Supreme Court in the aforesaid case has gone to an extent that power of quashing an FIR should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases' and that while examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
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8. The Supreme Court in the case of State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately considered scope and ambit of Section 482 Cr.P.C. and/or Article 226 of the Constitution of India in the background of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements, the Supreme Court made certain categories of cases by way of illustration, where the power under Article 226 of Section 482 can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102, which gives seven categories of cases where power can be exercised under Section 482 Cr. P.C. are reproduced 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 channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(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 Page 6 OWP no.1020/2015 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."
9. The case in hand when examined on the touchstone of law laid down by the Supreme Court, does not at all persuade this Court to grant the relief prayed for by petitioner in the instant petition as it requires and demands full dress trial and examination of facts by this Court as if it is in appeal and acting as an appellate court and to draw its own conclusion vis-à-vis impugned FIR, and proceedings emanating therefrom. This is not the aim and objective of provisions of Article 226 of the Constitution, more particularly when petition on hand does not unveil any ground muchless cogent or material one, to indicate that the inherent powers are to be exercised to prevent abuse of process of law and to secure ends of justice. Insofar as earning of judgement in SWP no.352/2012 c/w SWP no.354/2012, is concerned, the same would not be a ground to quash an FIR, more particularly when the said judgement is already under challenge in an appeal, being LPA no.161/2020. In that view of matter, impugned FIR does not call for any interference qua petitioner and as a consequence of which, petition on hand is liable to be dismissed.
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10.For the reasons discussed above, the instant writ petition is without any merit and is, accordingly, dismissed with connected CM(s). Interim direction, if any, shall stand vacated.
(Vinod Chatterji Koul) Judge Srinagar 06.12.2022 Ajaz Ahmad, PS Whether approved for reporting? Yes/No. Page 8 OWP no.1020/2015