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2004 DIGILAW 37 (JK)

S. K. Puri v. State

2004-02-26

S.K.GUPTA

body2004
Through the currency of this petition under section 561-A Cr.P.C, the petitioner-S.K.Puri, against whom challan under section 5(2) of Prevention of Corruption Act, 2006 read with section 11 of the Jammu & Kashmir Public Men and Public Servants Declaration of Assets and other provisions Act, 1983(hereinafter referred to as the Act of 1983) presented in the Court of Special Judge, Anti-Corruption, Jammu on 3.2.1996 has sought quashment of the FIR No.61 of 1995, Government Order No. 4-HOME(VIG) of 1996 dated 5.1.1996 according sanction for prosecution of the petitioner and criminal proceedings pending before the learned Special Judge, Anti-Corruption, Jammu. 2. The allegation against the petitioner enumerated from the record in narration is that the petitioner, the then Managing Director, Jammu & Kashmir Housing Board, had deliberately not submitted his property returns to the prescribed authority for the years 1990 to 1993 and the aforesaid act of the petitioner is in violation of the Service Conduct Rules and section-11 of the Act, 1983 punishable under section 5(2) of the prevention of Corruption Act, 2006(hereinafter referred to as the Act of 2006). 3. It is pertinent to point out that the petitioner earlier, at the time of registration of FIR No.61 of 1995, filed writ petition bearing SWP No. 51 of 1996 in this court in which the registration of the FIR was challenged. It was during the pendency of the writ petition, the Investigating Agency presented challan against the petitioner in the court of learned Special Judge, Anti-Corruption, Jammu. Thereafter, the petitioner preferred present petition and the writ petition SWP No. 51 of 1996 came to be withdrawn. 4. The petitioner has challenged registration of FIR No.61 of 1995, Government Order No.4-HOME(VIG) of 1996 dated 5.1.1996 whereby sanction for prosecution of the petitioner was granted and criminal proceedings pending before the learned Special Judge, Anti -Corruption, Jammu, on the ground that under section -11 of the Act, 1983 itself, right is created in favour of a public servant to show any reasonable cause for its failure to submit the return annually. Further contention of Mr. Further contention of Mr. P.N.Raina, learned counsel for the petitioner, is that where public servant was charged of having committed criminal misconduct, as he did not submit the property statements for certain years under S.5(1)(e) of the Act of 2006, the `prescribed authority under S.5(1)(e) was the Government and it was incumbent upon the Government to issue show cause to said public servant before any penal action is taken against him and, therefore, the issuance of notice by Investigating Officer was improper. Section-11 of the Act, 1983, for facility of reference, is reproduced as under; "Section-11. Penalty for non-submission of returns: if any public servant without any reasonable cause which he shall be required to show fails to submit the returns annually, he shall be guilty of committing criminal misconduct as specified in clause(e) of sub-section (1) of Sec. 5 of the Prevention of Corruption Act. Smt. 2006 and shall be punishable under the said Act." 5. The opening words of the Section, "if any public servant without any reasonable cause which he shall be required to show, fails to submit the returns annually," leaves no manner of doubt whatsoever that before a person is held guilty, he is entitled to be given a show cause notice. Mr. B.S. Slathia, learned Senior AAG, candidly conceded that no show cause notice or opportunity, as is required to be provided under section-11 of the Act, 1983, at any stage, provided to the petitioner to show cause against non- submission of annual returns. Mr. Slathia, Senior AAG, further submitted that Vigilance Organisation had issued a questionnaire, but the petitioner failed to show any reasonable cause and this is sufficient to meet the requirement of section-11 of the Act, 1983. Undoubtedly, under section III (c) the petitioner has to submit returns of his assets to the Government. It was, therefore, for the Government/Competent Authority to ask him to show cause for his failure to submit returns annually before reporting the matter to the Police. A notice by Investigating Officer is not a substitute for the notice as is mandated by law. Further, power to accept or reject explanation is given to the Authority under section 5(2) of the Act, 2006 and not to the Vigilance Organisation. It is the prescribed authority to whom the returns are to be submitted and not to the Vigilance Organisation/Investigating Agency. Further, power to accept or reject explanation is given to the Authority under section 5(2) of the Act, 2006 and not to the Vigilance Organisation. It is the prescribed authority to whom the returns are to be submitted and not to the Vigilance Organisation/Investigating Agency. Similar question came to be considered by a co-ordinate Bench of this Court in OWP No. 93 of 1996 and Petition No.114 of 1995 decided on 10.9.1996, titled Ghulam Nabi Sofi v. State of Jammu & Kashmir & Ors. and it was held as under; ".From the conjoint reading of sections 2,9, and 11 of the Act of 1983, it transpires that in the instant case show cause notice should have been issued by the Government for eliciting reasonable cause from the petitioner for the non-submission of the property statements of the years in question and not by the Investigating Officer. If law requires something to be done in a particular manner that should be got done in the same manner. According of sanction of the prosecution of a public servant by the Government is not an idle formality but a sacrosanct ritual which requires proper application of mind. A power which specially has been vested under this Act in an authority cannot be delegated or borrowed by a functionary of that authority who under law cannot be a substitute for the same. An Investigating Officer, whose statutory functions are only to collect the evidence can by no stretch of imagination represent the Government to call any reasonable cause from a public servant for non-submission of property statements as contemplated under Section 11 of the Act of 1983 and give its finding thereon. Any such exercise of authority by the investigating officer has no sanction of law. The argument advanced by the counsel for the respondents in this behalf this pales into insignificance." It was further relied upon and reiterated in 561-A Cr.P.C 75/1996, titled Jawahar Lal Kaul v. State of Jammu & Kashmir. 6. Any such exercise of authority by the investigating officer has no sanction of law. The argument advanced by the counsel for the respondents in this behalf this pales into insignificance." It was further relied upon and reiterated in 561-A Cr.P.C 75/1996, titled Jawahar Lal Kaul v. State of Jammu & Kashmir. 6. It being an admitted case of the parties that no show cause notice was issued by Competent Authority/ Government, as is mandated by section-11 of the Act,1983, no offence, as the law has already been settled, can be alleged to have been committed by the petitioner, as he is alleged to have been committed in the criminal proceedings pending before learned Special Judge, Anti-Corruption, Jammu on the basis of FIR No.61 of 1995, Police Station, Vigilance Organisation, Jammu. 7. After taking conspectus of the facts and circumstances discussed above in its cumulative, the inevitable conclusion reached is that prosecution of the petitioner herein initiated was without following mandate of section -11 of the Act of 1983 and this legal infirmity on the face of it vitiates the entire proceedings. 8. Consequently, the petition is allowed and the prosecution of the petitioner in the case State v. Sudesh Kumar Puri, arising out of FIR No. 61 of 1995 registered by Vigilance Organisation, Jammu as well as Government Order No. 4-HOME(VIG) of 1996 dated 5.1.1996 according sanction for prosecution of the petitioner and the criminal proceedings pending before the learned Special Judge, Anti-Corruption, Jammu are quashed under section 561-A Cr.P.C. Disposed of.