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2017 DIGILAW 76 (JK)

Subash Singh Chib v. State

2017-02-20

JANAK RAJ KOTWAL

body2017
JUDGMENT : Janak Raj Kotwal, J. This is a petition under Section 561-A of the Jammu and Kashmir Code of Criminal Procedure, 1989 (for short, the Code) seeking quashing of (i) FIR No. 15/2014 dated 29.05.2014 of Police Station, Vigilance Organization, Jammu under Section 5(1)(d) r/w 5(2) of the Jammu and Kashmir Prevention of Corruption Act, 2006 (for short, the P.C. Act) and Section 17 of the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001 (for short, the Roshni Act), (ii) the proceedings conducted in the said FIR and iii) the Government Order No. 18-GAD(Vig) of 2016 dated 27.06.2016 whereby sanction in terms of Section 6 of the P.C. Act has been accorded for launching prosecution against petitioners 1 & 2, who are Public servants. 2. Heard. I have perused the record. 3. The allegations involved in FIR No.15 of 2014 (supra) relate to bungling in conferment of ownership right in 63 kanals and 15 marlas of State land comprised in Khasra Nos. 259, 260, 261, 263 and 264 situate at village, Katal Batal in favour of one Bashir Ahmed under the Roshni Act. The impugned Government Order No. 18-GAD (supra) would show that after investigation the Vigilance Organization has found commission of offences under Sections 5(1)(d) r/w 5(2) of the P.C. Act and 17 of the Roshni Act by the petitioners, who are/were at the relevant time public servants. These public servants are alleged to have abused their official position by showing non-agricultural land as agricultural land and thereby causing loss to State exchequer. As petitioners 1 & 2, are in Government service, the others having retired on superannuation, the Government has accorded sanction for their prosecution in terms of Section 6 of the P.C. Act. 4. Quashing of the FIR, the proceedings (investigation) and the sanction order is sought mainly on the grounds, firstly, that petitioners have been falsely implicated and the material collected by the investigating agency does not establish commission of any offence by them and secondly, that the Government order according sanction to prosecute petitioners 1 & 2 has been passed by the sanctioning authority without application of mind and is actuated with mala fides and the sanction is, therefore, illegal. It is contended that the FIR and the impugned Government order ex facie are illegal and highly motivated against the petitioners and therefore, liable to be quashed. It is contended that the FIR and the impugned Government order ex facie are illegal and highly motivated against the petitioners and therefore, liable to be quashed. It is contended further that the petitioners did not make any wrong reporting in the matter and did not commit any irregularity or illegality in discharge of their official duty. The investigating agency has failed to appreciate that petitioners had faithfully given their reports after conducting verification/re-verification. It is contended that accord of sanction to prosecute petitioners 1 & 2 is totally illegal, arbitrary and bad in the eyes of law as no offence has been made out against them or the other petitioners. Contextually, it is contended that a number of officers/officials were found involved in the case and sanction to prosecute all of them was sought by the Vigilance Organization but respondent No.1, in order to save all those officers/officials who have closed nexus in the corridors in the power for extraneous and mala fide considerations did not grant sanction against any of such officers/officials, but only targeted the petitioners 1 & 2 notwithstanding the fact that the petitioners have not done anything wrong nor have they taken any such action or made any such report which has caused loss to State or to the State Exchequer.' 5. Upon hearing learned counsel for the parties and perusal of the record of the case produced at Bar by the learned Deputy Advocate General, it emerged as common ground of both the sides that accused Bashir Ahmed has been conferred with ownership rights in 63 kanals and 15 marlas of State land comprised in Khasra Nos. 259, 260, 261, 263 and 264 in terms of Section 8(3) of the Roshni Act under agricultural use against payment of a token amount of Rs.100/per kanal. Likewise, he has been conferred with ownership right in 1 kanal and 1 marla of land under non-agricultural use against payment of one lac rupees. The petitioners in abuse of their official position are alleged to have reported wrongly the agricultural use of non-agricultural land thereby causing huge loss to State exchequer as cost/fees payable against the conferment of ownership right in the land for non-agricultural use is far higher than that against the land for agricultural use. 6. The petitioners in abuse of their official position are alleged to have reported wrongly the agricultural use of non-agricultural land thereby causing huge loss to State exchequer as cost/fees payable against the conferment of ownership right in the land for non-agricultural use is far higher than that against the land for agricultural use. 6. Learned counsel appearing on behalf of the petitioners painstakingly read out the various reports made by the petitioners in the course of processing the case of accused Bashir Ahmed for conferment of ownership right in aforementioned land in his favour, from the copies thereof annexed to this petition, in reference to the khasra entries about the land in question, which too are annexed to the petition, in order to demonstrate that no wrong report was ever made by them so there is no material or sufficient ground for putting them to the trial for the commission of aforementioned offences. Reading out the copy of impugned sanction order, learned counsel submitted that the sanctioning authority has acted without application of mind and has illegally, arbitrarily and with mala fide intention exonerated the then Deputy Commissioner, who had passed the orders of conferment of ownership right in favour of Bashir Hussain, and has wrongly observed that prima facie case is made out against the petitioners. It was argued that order of sanction does not dilate as to how the reports made by the petitioners were wrong and what offence has been committed by each of the petitioners. Learned counsel would say that reports, whatsoever, were accompanied with copies of Khasra entries in which the character of the land was clearly stated so question of making any wrong report does not arise. 7. Per contra, learned Deputy Advocate General appearing on behalf of the respondents submitted that no case for showing any indulgence by this Court in exercise of inherent jurisdiction under Section 561-A of the Code is made out at this stage as investigation in the case is complete and charge sheet against the petitioners would be lodged in the competent court and petitioners will have opportunity of seeking their discharge in case trial court does not find any prima facie case against them. Learned Dy. Learned Dy. A.G submitted also that quashment of proceedings or order of sanction cannot be sought from this Court as legality of an order of sanction can be adjudged only by the trial court on the basis of the evidence to be led in support of the order of sanction. 8. High Court under section 561-A of the Code (sec. 482 of the Central Code) is vested with inherent jurisdiction to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of process of any court or otherwise to secure the ends of justice. Inherent jurisdiction can be invoked to seek quashing of an FIR and investigation by the police or any criminal proceedings pending in any court if it is shown to the satisfaction of the High Court that such proceedings is the abuse of process of the court or tends to cause miscarriage of justice or the quashing is otherwise required to secure the ends of justice. The inherent jurisdiction of the High Court though vast, by now is well defined and circumscribed by virtue of various authorities of the Supreme Court starting from R.P. Kapur v. State of Punjab, AIR 1960 SC 866 up to the landmark judgment in State of Haryana v. Bhajan Lal, AIR 1992 SC 604 and many more after that. In Bhajan Lal's case, Supreme Court has paraphrased categories of cases by way of illustration wherein inherent jurisdiction can be exercised to prevent the abuse of process of a court or to secure the ends of justice. These are: "108" 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 cognisable 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. 4. 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 cognizance offence but constitute only a non-cognisable offence, no investigation is permitted by a police officer 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 Act concerned (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceedings is manifestly attended with mala fides 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. FIR can be quashed if allegations made therein even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out any case or do not disclose a cognisable case justifying investigation by the police. FIR and the investigation may also be quashed if evidence collected in support of the same does not disclose commission of any offence or make out a case against the accused. FIR or the criminal proceedings arising therein may be quashed where allegations 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 or where there is an express legal bar to the institution and continuation of criminal proceedings. 10. Here the FIR was registered in the year 2014 and it is evident from the record that before registering FIR a preliminary inquiry in the matter was held. 10. Here the FIR was registered in the year 2014 and it is evident from the record that before registering FIR a preliminary inquiry in the matter was held. On reading the contents of the FIR it cannot be said, nor it is contended, that no cognisable offence or in particular offences under Section 5(1) (d) r/w 5(2) of the P.C. Act or Section 17 of the Roshni Act is disclosed therein. 11. The question raised, however, is, whether the evidence/material collected by the investigating agency does not make out a case of commission of any offence, that is, any wrong reporting by the petitioners in abuse of their official position. In raising such a question at a stage when investigation is complete and the investigating agency is about to file charge-sheet in the court the petitioners would like this Court to appreciate and sift the evidence collected by the Investigating Officer also having regard to the khasra entries in respect of the nature of the land in question. To do so, however, besides being beyond the scope of the inherent jurisdiction of this Court, is untimely and would amount to usurping the power of the trial court. It is open for the petitioners to plead and show before the trial court that the evidence/material collected by the investigating agency does not make out a prima facie case for framing charges against them and earn discharge on that score. I am, therefore, inclined to agree with the contention of the learned Deputy Advocate General that charge-sheet in the case is likely to be filed in the competent court and the petitioners in the inception of trial will get a chance to seek consideration of the trial court as to whether a prima facie case for framing charge against them on the basis of the evidence/material collected by the Investigating Officer is made out or not. Petitioners, however, have chosen to make such an effort before this Court, which cannot be allowed as this Court in exercise of inherent jurisdiction under 561-A of the Code cannot be expected to give a finding at pre-trial stage as to whether a prima facie case is made out or not. This might have been possible had it been a case of no legal evidence at all, which, however, has not been found so on perusal of the record of the case. This might have been possible had it been a case of no legal evidence at all, which, however, has not been found so on perusal of the record of the case. It is rather a case of appreciating the evidence/material collected by the investigating agency for forming an opinion as to whether there is a prima facie case for framing charge against the accused persons, which is a job to be performed by the trial court. 12. Petitioners 1 & 2, nevertheless, have a point in their contention relating to the impugned sanction order because sanction to prosecute under section 6 of the P.C. Act is relatable to the jurisdiction of a court to take cognizance of an offence under the said Act against a public servant. Section 6 (1) of the P.C. Act creates an express bar against taking cognizance of any offence under the said Act against a public servant except with previous sanction of the Government/competent authority and it is clearly laid down in Bhajan Lal's case (supra) that criminal proceedings can be quashed where there is an express legal bar to institution and continuance of criminal proceedings. If cognizance of an offence under the P.C. Act is taken against a public servant without valid sanction, cause of action accrues to the aggrieved person to raise objection on this score. 13. Absence of sanction to prosecute or validity of the sanction order, however, cannot be looked into in isolation in view of the amendment to section 6 of the P.C. Act vide Amendment Act VII of 2007 dated 21.02.2007 whereby sub-sections (3) & (4) have been inserted therein and therefore, a question arises as to at what stage objections on this score can be raised. Sub-sections (3) & (4) of section 6 read: "(3) Notwithstanding anything contained in the Code of Criminal Procedure, Samvat, 1989, - (a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of any error, omission or irregularities in, the sanction required under sub-Section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any enquiry, trial, appeal or other proceedings." "(4) In determining under sub-Section (3) whether any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation,- For the purposes of this Section.- (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature." 14. Provisions contained in Sub-Sections (1) and (2) of Section 6 of the P.C. Act in their substance tally with sub-sections (1) and (2) of Section 19 of the Prevention of Corruption Act, 1988 (for short, the Central Act). Sub-sections (3) and (4) of Section 6 of the P.C. Act, however, are in pari materia with sub-Section (3) and (4) of Section 19 of the Central Act. The provisions contained in Section 19 (1),(2),(3) and (4) of the Central Act came up for consideration before the Supreme Court in Parkash Singh Badal v. state of Punjab and Anr., AIR 2007 SC 1274. Hon'ble Supreme court in paras 47 and 48 of the judgment has held: "47: The sanctioning authority is not required to separately specify each of the offences against the accused public servant. Hon'ble Supreme court in paras 47 and 48 of the judgment has held: "47: The sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalized guidelines in that regard. 48: The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial." (Underlining by me) 15. In Dinesh Kumar v. Chairman Airport Authority of India, AIR 2012 SC 858 , the validity of the sanction order was challenged by the accused before the High Court but the charge-sheet against him was filed before the Special Court during pendency of the case before the High Court. Supreme Court in this case, referred with approval to the view taken by the Court in Prakash Singh Badal's case. Para 11 of the reporting in Dinesh Kumar is important, which I quote: "11. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal expressed in no uncertain terms that the absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Parkash Singh Badal, this Court referred to invalidity of sanction on account of non-application of mind. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind - a category carved out by this Court in Parkash Singh Badal, the challenge to which can always be raised in the course of trial." (Underlining by me) 15. Recently identical questions came up for consideration before the Supreme Court in C.B.I v. Ashok Kumar Aggarwal, AIR 2014 SC 827 . In this case, charge-sheet against respondent therein was filed before the court of Special Judge. The respondent challenged validity of sanction by filing two applications. Learned Special Judge dismissed the applications holding that it was not the appropriate stage to decide as to whether sanction granted by the competent authority was valid. The respondent filed revision application against the order passed by the Special Judge before the High Court. The High Court set aside the order of Special Judge and remanded the case to the Special Judge for recording a finding on the question of any failure of justice in according sanction and to examine the sanctioning authority as a witness even at pre-charge stage, if deemed fit. In the appeal filed by the C.B.I. The Supreme Court considered the question as to what is the proper stage when issue relating to the validity of sanction order can be raised and examined (ref. paras 20 and 46 of the reporting). Hon'ble Supreme Court while relying upon Parkash Singh Badal's case and Dinesh Kumar's case has held in paragraph 47 of the reporting. "47. Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the state of inquiry or at pretrial stage." 16. Issue as to when objection relating to lack of sanction to prosecute in terms of section 6 of the P.C. Act or alleged invalidity of the sanction order can be raised is no more res integra, thus. Issue as to when objection relating to lack of sanction to prosecute in terms of section 6 of the P.C. Act or alleged invalidity of the sanction order can be raised is no more res integra, thus. Absence of sanction to prosecute creates an express bar against taking cognizance against a public servant for an offence under the P.C. Act so normally no court will take cognizance if there is no sanction. If, however, cognizance is taken without sanction, cause of action accrues to the accused public servant to assail the order of taking cognizance immediately after the prosecution against him has been launched. Objection on this score can be raised at the threshold of the proceedings in the court. Likewise, cause of action accrues to a public servant if sanction order allegedly suffers from invalidity on account of any error, omission or irregularity, like one arising from non-application of mind by the sanctioning authority. Objection on the basis of alleged invalidity of sanction order, however, can be raised during trial of the case. In no case the sanction order can be challenged at pre-trial stage. 17. Contextually, question would arise as to at what stage the objection in regard to invalidity of sanction order should be dealt with by the court. There is a distinction between the lack of sanction and invalidity of the sanction order. In this regard, it is to be borne in mind that a sanction order is an administrative act of the Government or the competent authority, which is couched with presumption under Section 114 (e) of the Evidence Act that official acts have been regularly performed. It being a public document, prosecution is required to prove and will have to be provided opportunity to prove the order of sanction as a fact before the trial court by leading evidence and accused automatically gets opportunity to prove the invalidity alleged by him. It can, therefore, be said that, whereas an objection relating to lack of sanction to prosecute can be decided as soon as it is raised, objection relating to alleged invalidity of sanction should be decided after giving the prosecution opportunity to lead evidence in support of the sanction order. 18. For all that said and discussed above, no case for showing indulgence by this Court in exercise of inherent jurisdiction under section 561-A of the Code is made out. 18. For all that said and discussed above, no case for showing indulgence by this Court in exercise of inherent jurisdiction under section 561-A of the Code is made out. This petition is, therefore, dismissed keeping it open for the petitioners to agitate the matter before the trial court after and if the charge-sheet against them is filed. 19. Disposed of.