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06/ Mr. Jehangir Iqbal Ganai, learned Advocate General, appearing on behalf of the State of J&K, in unequivocal terms, submitted that the Commission has no power under the Act of 2002 to initiate suo moto proceedings against any public functionary. He submitted that the Commission is the creation of Statute, viz. the Act of 2002 and in view of the settled legal position, the Commission, a Statutory Authority, has to perform its functions in accordance with the parameters laid down by the Act of 2002. He further submitted that the Act of 2002 has not conferred power on the Commission to initiate suo moto proceedings against a public functionary. Mr. Ganai submitted that the power to initiate suo moto proceedings has not been conferred on the Commission to ensure that honest public functionary does not become victim of any vilification campaign against him launched by an unknown individual or a group of such persons. Learned counsel submitted that the Act of 2002 and the provisions made in Jammu & Kashmir Accountability Commission Rules, 2005 (for short Rules of 2005) prescribe stringent procedure for filing of a complaint and also provide for taking penal action in case a malicious/fraud complaint is filed against a public functionary. Learned counsel, in support of his contention, referred to sections, 9 & 11 of the Act of 2002 and regulation 9 of the Regulations 2005. Learned counsel also referred to and relied upon judgement of Hon'ble the Supreme Court, reported in 2015(9) SCC 209, the judgement, upon which, Mr. Pranav Kohli, also relied.

07/ M/s. U.K.Jalali, D.C.Raina, P.N.Raina & B.S.Salathia, learned Senior Counsel and Mr. Ajay Kumar, learned counsel, appearing for respondents in these Appeals, in their submissions, defended the judgement of the learned writ Court. Learned counsel argued at great length. They, besides arguing that the Commission, which is a creature of Statute, having been not conferred with the power of initiating suo moto proceedings against a public functionary further submitted that it can also not file these Appeals being not an aggrieved person. Learned counsel referred to the provisions of the Act of 2002, Rules and Regulations of 2005, to indicate that no power has been conferred by the Statute/Statutory Rules on the Commission to initiate suo moto proceedings against a public functionary. Learned counsel submitted that the Commission, by initiating suo moto proceedings, has assumed unto itself the power, which, in law, is not vested in it. Learned counsel further submitted that the legislature, which has enacted the Act of 2002, has not, even by implication, conferred power on its creature for initiating suo moto proceedings, thus, the creature cannot assume unto itself the jurisdiction not conferred upon it by the creator. Learned counsel submitted that regulation 9 of the Regulations of 2005 is ultra vires to the Act of 2002 and Rules of 2005 and the same has been, rightly, struck down by the learned writ Court. Learned counsel also submitted that initiation of action against a public functionary has to be commenced and regulated strictly in accordance with the provisions of the Act of 2002 and Rules of 2005, in as much as, safeguards have been prescribed and provisions have been made for initiation of penal action against a person, who files a frivolous complaint against a public functionary. Learned counsel submitted that such safeguards are not available in case of initiation of suo moto proceedings by the Commission. Learned counsel further submitted that initiation of proceedings against a public functionary on the basis of press reports or on anonymous complaints which, ultimately, may turn out to be false and frivolous, will have a tremendous adverse impact on the public life of a public functionary. Learned counsel submitted that in order to avoid such a situation to arise, the legislators, in their wisdom, have prescribed safeguards against filing of frivolous and false complaints against public functionaries. Learned counsel, while referring to provisions of the Act of 2002, submitted that format is prescribed for filing of a complaint and the complainant, besides identifying himself in the complaint, has to file an Affidavit. Learned counsel further submitted that in the event the complaint is found to be false, the complainant can be subjected to penal action by the Commission. 08/ Learned counsel submitted that jurisdiction of Commission to initiate action in terms of section 9 of Act of 2002 is conditional and is circumscribed by other provisions, more particularly, section 11 thereof. Learned counsel submitted that the Commission can initiate action only when complaint is filed in terms of section 11. 09/ In addition, Mr. Salathia, learned senior Counsel, also referred to a Circular No. 3(V)/99/2 issued by the Central Vigilance Commission, the subject matter of which is "improving vigilance administration-no action to be taken on anonymous/pseudonymous petitions/complaints" and submitted that even the Central Vigilance Commission hardly takes cognizance of anonymous/pseudonymous complaints as initiating action on such type of complaints has an adverse effect on the person complained against. Learned counsel, in support of their contentions, referred to and relied upon the following judgements :

14/ A bare look on the provisions of the act of 2002 and Rules of 2005 would show that neither the legislature nor the Rule Making Authority has, apparently, conferred any specific power on the Commission for initiation of suo moto proceedings against a public functionary.

15/ In view of the arguments advanced at bar by learned counsel for the respondents, in the ordinary course of things, these Appeals apparently may not succeed. However, an issue of great public importance involved in these Appeals, does call for an in depth look into the Act of 2002 and Rules & Regulations of 2005. 16/ The penal laws in the shape of Prevention of Corruption Act Svt. 2006, Ranbir Penal Code Svt 1989 (1932 A.D) to deal with the omissions and commissions of the Government servants/public functionaries, are already in existence. In terms of the Code of Criminal Procedure, police stations have been constituted for the purpose of lodging of complaints and/or initiation of investigations in respect of alleged commission of offences. These police stations are manned by the police officers of various ranks. Existence of penal laws and of institutions/mechanism for dealing with the corruption, has not measured upto the expectations, which impelled the State Government to enact a law for arresting the further deterioration in the functioning of the public functionaries as defined in terms of section 2(16) of the Act of 2002. These public functionaries include a person, who is or was at any time the Chief Minister or a Minister of the State, Speaker or Deputy Speaker of the State Legislative Assembly, Chairman or Deputy Chairman of State Legislative Council, a member of State Legislature, Advisor to Governor, Advisor including the Political Advisor to Chief Minister of the Government, given the status of Minister or Minister of State by the Government in connection with discharge of his official functions as Chairman (other than a Government servant) of a Statutory Corporation or Autonomous Board. The Minister would also include Minister of State and a Deputy Minister. 17/ In terms of original Act of 2002, the officers appointed to civil and public posts in connection with running the affairs of the State would also come within the jurisdiction of the Commission. However, after amendment of the Act of 2002, which came into force with effect from 19th January, 2011, the civil servants have been taken out of the jurisdiction of the Commission. 18/ A human being is a superior creation of the Creator. A human being in itself constitutes a complete universe. The forces of virtue and vice are always at work and play within the universe of a human being. In order to put human being on the right track and to ensure that he treads the right path and does not stray and follow the evil path, nature has created an accountability mechanism within the human being, otherwise called conscience. This natural force keeps on constantly telling the human being which is right and which is wrong path and further relentlessly reminds him that treading the right path will make his this world and hereafter better for him. Since a human being is part of the society, his following the true principles of life are essential for better living of other human beings. In every society, which includes a democratic society also, the conduct of an individual is regulated by some laws and norms. These laws are natural as well as man made. The accountability mechanism, which nature has created in every human being, constantly keeps on telling him to follow the prescribed laws and norms. Straying from the right path, not only makes an individual to suffer himself but also makes the whole society victim of his breaching the prescribed laws and norms. The societies, which includes democratic societies, governed by rule of law, does prescribe laws and create institutions for regulating the conduct and behavior of the human beings. 19/ The creation of Accountability Commission, through legislative process, is an essential component of having a society, which in true sense is governed by rule of law. The State Legislature has brought within the purview of the Act of 2002, the political executive, which include the Chief Minister and the Ministers. The actions of these authorities and the allegations made, as defined in section 2 sub sections (2) & (3) of the Act of 2002, would require to be investigated by the persons of high caliber. The Legislators, in their wisdom, while establishing the Accountability Commission, have provided that it shall consist of a Chairperson, who has been a Judge of the Supreme Court or Judge of any High Court and such other members, as may be prescribed and the person for being appointed as a member has to be Judge of the High court. The Chairperson and the members, before entering into the offices, are required to make and subscribe before the Hon'ble Governor or any person nominated in this behalf by him an oath or affirmation in the form set out in the Schedule. The Chairperson and the members, if any, are to be appointed by the Governor by warrant under his hand and seal in terms of section 4 of the Act of 2002. Such appointment, however, is to be made after obtaining recommendations of the Committee consisting of :

40/ Since the public functionaries, as defined in section 2(16) of the Act of 2002, survive in public life on the basis of public perception, in order to ensure that their public image is not damaged by filing of false complaints or leveling false allegations, the Legislators have made stringent provisions for taking of stringent action against the person, who files false complaint or levels false allegation against a public functionary. The provisions of the Act of 2002 are sufficient to deter a person from leveling false allegation or filing false complaint against a public functionary. 41/ True it is that public functionaries, as defined in the Act of 2002, hold their respective positions/offices as trustees of people and they reach to such positions on the basis of the work they have discharged in their public life. Anything said against a public functionary, as defined in the Act of 2002, in the print or electronic media or by sending anonymous/pseudonymous complaints, in the backdrop of the establishment of Commission, whether will have damaging impact on their public image or on their person, would further require to be answered. In terms of section 11(3) of the Act of 2002, when a complaint is made under the Act to the Commission by any person or by a person aggrieved, the Commission is dutybound not to make public its contents till its scrutiny is made in terms of section 12 thereof. Section 12 of the Act of 2002 prescribes for conducting preliminary scrutiny of the complaints by the Commission. Sub section 1 of section 12 of the Act of 2002 prescribes that after considering a complaint and after making such verification as it deems appropriate and after entering into satisfaction that the complaint is manifestly false and vexatious, the Commission is dutybound to dismiss the complaint after recording its reasons therefor. The decision is to be communicated to the complainant as also to the competent authority. Sub section 2 of section 12 of the Act of 2002, prescribes procedure for verification in respect of a complaint and further provides that the procedure for verification would be such as the Commission deems appropriate under the circumstances of the case. This statutory safeguard, in respect of filing of a complaint under the Act of 2002, has to be followed by the Commission with religious zeal. It is only in case the complaint is not dismissed in terms of section 12 of the Act of 2002 that enquiry is to be initiated by the Commission in accordance with the provisions of the Act of 2002, more particularly, section 13 thereof.