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2016 DIGILAW 612 (JK)

S. K. Bhalla v. Alok Puri

2016-11-24

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This petition is filed seeking initiation of contempt of court proceeding against the respondents for their willful/intentional/deliberate defiance of judgment dated 12.11.2013 passed by Hon'ble the Supreme Court in SLP(Cr.) No. 5986 of 2006, SLP(Cr.) No. 5200 of 2009, Criminal Appeal No. 1410/2011, Criminal Appeal No. 1267/2007 and Contempt petition (C) No. D26722 of 2008 in writ petition (criminal) No. 68 of 2008 titled Lalita Kumari v. Govt. of U.P. & Ors. read with order dated 05.03.2014 passed in CRL MP No. 5029 of 2014 in writ petition (CRL) No. 68 of 2008. The case of the petitioner is that he made a complaint on 08.03.2016 before the respondents seeking registration of FIR under Section 5(2) of J&K Prevention of Corruption Act, 2006 against Mr. Raman Bhalla S/o. Mr. Shiv Kumar Bhalla R/o Village Deeli, District Jammu (Former Minister for Housing, Horticulture, Culture and Youth Services and Sports, J&K Government), who allegedly abused his official position, got several works executed both at Jammu and Srinagar on extraneous considerations actuated with malafide exercise of power and Mr. Ram Pal Sharma (Former I/c Managing Director, J&K Housing Board) presently Secretary, J&K Housing Board, Jammu, who carried out all the orders/directions of the then Minister which resulted in creation of liabilities worth Rs. 27.60 crores to J&K Housing Board. According to the petitioner, the works should have been executed by the Power Development Department, Public Works Department, Floriculture and other line departments. The complaint was sent through speed post on 08.03.2016. Despite receipt of the said complaint, FIR was not registered in terms of the directions of Hon'ble the Supreme Court issued in Lalita Kumari v. Govt. of UP and others reported in (2014) 2 SCC 1 . 2. On taking notice by the learned Senior Additional Advocate General, a status report was filed before this Court on 01.06.2016 stating that as per the guidelines laid down in Vigilance Manual, 2008, the complaint was referred to the Commissioner/Secretary to Govt., Housing and Urban Development, J&K with a request to furnish a factual report along with outcome of the enquiry and the same has not been received, hence a reminder was sent on 19.05.2016. A three member committee was constituted for the purpose of going into the complaint and it was stated that once enquiry report is filed by the Committee, action will be taken based on the findings of the enquiry committee. Thereafter the three member enquiry committee submitted its report with the following findings :- "15. After random physical verification, scrutiny of records and the aforementioned observations, the following conclusions are drawn :- I. The Board has executed works beyond its jurisdiction i.e. works have been undertaken in areas/colonies which are not under its control i.e. in the colonies which have neither been developed by the Housing Board and nor transferred to the Housing Board by the Government for their upkeep/gradation. II. The Board has undertaken the construction of shelters/dwelling units for weaker sections of the society without any approved schemes or approved guidelines. The list of beneficiaries of the activity has not been approved by any Competent Authority and mechanism adopted for selection for beneficiaries could not be known. III. Works have been undertaken without any budgetary provisions, thereby depleting the financial reserves of the Board which are meant for the welfare of the employees like salaries, pensions and other benefits to the serving and retired employees of the Board. IV. Funds have been released to the Engineering sections/divisions by the Accounts section without ensuring that requisite codal formalities are followed by the Executing Agencies i.e. DGM's of the J&K Housing Board. V. The works have been executed without any approval of the works plan and disbursements have been made without prior approval of the Competent Authority. No action plan of works programme has been prepared and the works have been executed arbitrarily in violation of defined procedures as being followed by similar Government Departments/Corporations to maintain transparency and proper management. 16. The Committee observed that prescribed guidelines have not been exercised at any level during the execution of these works. The responsibilities/duties associated with the offices of Managing Director, FA/CAO, DGM's, Technical Officers have not been discharged diligently. The precious reserves of the Board have been depleted arbitrarily by overstepping the mandate and jurisdiction without any plan/provision for augmenting this loss." 3. Thereafter the action taken report based on the enquiry report was ordered to be filed by this Court vide order dated 21.09.2016. 4. The precious reserves of the Board have been depleted arbitrarily by overstepping the mandate and jurisdiction without any plan/provision for augmenting this loss." 3. Thereafter the action taken report based on the enquiry report was ordered to be filed by this Court vide order dated 21.09.2016. 4. In compliance to order dated 21.09.2016, Inspector General of Police, State Vigilance Organization filed a compliance report on 23.11.2016 by stating as follows :- "That in light of the facts which surfaced during verification as enumerated above, nothing that the surfaced from the inquiry report of the committee hints at or discloses any offence of favoritism or conferring of undue benefits, or any such offence that fall within the offence that the State Vigilance Organization is empowered to investigate, therefore, in absence of an offence within its jurisdiction to investigate hence, no FIR could have been registered." 5. In light of the said decision arrived at by the Vigilance Organization, after preliminary enquiry no FIR could be registered for the above reason, the order of Hon'ble Supreme Court is complied with. 6. Hon'ble the Supreme Court in the decision reported in 2001 (7) SCC 530 (Chotu Ram v. Urvashi Gulati & Anr.) held that burden and standard of proof required in contempt proceedings is like criminal proceedings as the proceedings are quasi criminal in nature. In para 2 and 3 it is held thus :- "2. As regards, the burden and standard of proof, the common legal phraseology "he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the 'standard of proof,' be it noted that a proceeding under the extra-ordinary jurisdiction of the Court in terms of the provisions of the Contempt of Courts Act is quasi criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt. 3. Lord Denning [in Re Bramblevale 1969 (3) All ER 1062] lends concurrence to the aforesaid and the same reads as below : "A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond all reasonable doubt. Lord Denning [in Re Bramblevale 1969 (3) All ER 1062] lends concurrence to the aforesaid and the same reads as below : "A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond all reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence.... Where there are two equally consistent possibilities open to the Court, it is not right to hold that the offence is proved beyond reasonable doubt." Again in the decision reported in 2010 (3) SCC 705 (Sehdeo Singh v. State of U.P. & Ors.) in para 19, it is held thus :- "19. In Daroga Singh (supra), this Court observed that in case, the alleged contemnor feels that there is a necessity to cross-examine the witnesses i.e. deponents of affidavits filed against him, the alleged contemnor must be given an opportunity to cross-examine the said witnesses provided it is so asked by him. This Court observed that in Contempt proceedings, a summary procedure is to be adopted for the reason that matter is to be disposed of most expeditiously and it is for this reason that in spite of the fact that proceedings are quasi-criminal in nature, the procedure under Cr.P.C. or Evidence Act is not made applicable." The same view is reiterated in the decision reported in 2013 (10) SCC 248 (Noor Saba v. Anoop Mishra & Anr.). In para 14, it is held thus :- "14. To hold the respondents or anyone of them liable for contempt this Court has to arrive at a conclusion that the respondents have willfully disobeyed the order of the Court. The exercise of contempt jurisdiction is summary in nature and an adjudication of the liability of the alleged contemnor for willful disobedience of the Court is normally made on admitted and undisputed facts......" 7. The exercise of contempt jurisdiction is summary in nature and an adjudication of the liability of the alleged contemnor for willful disobedience of the Court is normally made on admitted and undisputed facts......" 7. It is also relevant to note that the contempt petition filed by the petitioner is not maintainable as nowhere in the judgment of Hon'ble Supreme Court reported in 2014 (2) SCC 1 (Lalita Kumari v. Government of U.P. & Ors.), relied on by the petitioner, it is stated that though directions were issued for registration of FIR in certain kind of complaints and conducting preliminary enquiry before registering the FIR in corruption cases, no direction to initiate contempt if delay has occurred, is given beyond the period mentioned in the order. The petitioner instead of approaching the Court with appropriate petition for appropriate direction has chosen to file criminal contempt petition, which cannot be entertained. Therefore, we are not inclined to proceed in this contempt petition and same is dismissed by following the principle of law that unless willful disobedience is established, no contempt will arise. However, liberty is given to the petitioner to approach the appropriate authority/forum, if petitioner is not satisfied with the action taken report.