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2018 DIGILAW 277 (JK)

Hafiz Ullah Shah v. State of J&K

2018-05-08

SANJEEV KUMAR

body2018
JUDGMENT : 1. The inherent powers of this Court vested by virtue of Section 561-A Cr. P.C. have been invoked by the petitioners for quashing FIR No.18/2016 registered with Police Station, Vigilance Organization, Kashmir for commission of offence under Section 5(1) (d) read with Section 5(2) of the Jammu & Kashmir Prevention of Corruption Act, Svt. 2006 and Section 120-B RPC. 2. Briefly stated, the facts as narrated in the petition are that the petitioners are the public servants serving in the Government of Jammu & Kashmir. Respondent No.4 at the relevant point of time was Tehsildar Shopian. It is stated that Sh. Taj-Moh-ud-Din who had been a cabinet minister of the State twice and an eminent leader of Congress party approached respondent No.4 with an application and affidavit for vesting of ownership rights with respect to land measuring 13 kanal 16 marlas under Khasra Nos.4/1 and 1162/709 situated at Sedow, Shopian in terms of the Jammu & Kashmir State Lands (Vesting of Ownership to Occupants) Act, 2001 (hereinafter referred to be as “the Act of 2001”). It is claimed that the opponents of Sh. Taj-Mohi-ud-Din who were looking for an opportunity to defame him got an item published in Daily Greater Kashmir on 20.01.2011 in which it was alleged that said minister had encroached upon forest land in connivance with the officials of the revenue department and had illegally got the ownership rights qua the forest land conferred upon him. It is further stated that it was only in August, 2016 an FIR bearing No.18/2016 came to be registered under various provisions of the Jammu & Kashmir Prevention of Corruption Act and Section 120-B RPC against the petitioners and the aforesaid minister. 3. In the context of aforesaid allegations, the petitioners have assailed the impugned FIR on the ground that the same has been lodged with mala fide intention of defaming and harming the ex-minister by his rivals and in the process the petitioners too have been unnecessarily and without any basis dragged in. 4. The respondents have controverted the allegations made by the petitioners in this petition by filing their objections. In the objections it is stated that the FIR was registered only after the allegations with regard to the encroachment of forest land at Sedow, Shopian adjacent to world famous tourist spot at Aharabal were found substantiated in preliminary verification conducted by the Vigilance Organization. In the objections it is stated that the FIR was registered only after the allegations with regard to the encroachment of forest land at Sedow, Shopian adjacent to world famous tourist spot at Aharabal were found substantiated in preliminary verification conducted by the Vigilance Organization. The allegation that the revenue officials i.e. the then Deputy Commissioner, Shopian Shri Mohd. Ramzan Thakur, Additional Deputy Commissioner Shri Mohd. Yousuf Zargar, Assistant Commissioner (Revenue) Sh. Hafizullah Shah and the then Tehsildar, Shopian Shri Gh. Hassan Rather in connivance with each other and also the beneficiary had abused their official position and had illegally conferred ownership rights upon the beneficiary over the forest land. 5. Subsequently, on the directions of this Court a status report was also filed by the respondents in which the steps taken by the investigating agency to investigate the matter have been indicated. In the status report it is also revealed that during the course of investigation, the matter was taken up with the Deputy Commissioner, Shopian for obtaining the original record pertaining to the illegal conferment of the ownership rights in favour of the beneficiary but the office of the Deputy Commissioner intimated that the record of the office of Deputy Commissioner, Shopian had been destroyed due to arson by unruly mob, However, some Photostat documents as were retrieved from concerned Tehsil office have been provided to the Vigilance Organization. In short, the status report reveals that investigation into the allegations is going on. 6. I have considered the submissions made by the learned counsel for the parties and perused the record. 7. The allegations against the petitioners are serious in nature and the same pertain to conferring ownership rights of forest land in favour of a very influential person by abusing the powers conferred upon the petitioners under the provisions of the Act of 2001. The allegations contained in the FIR do prima facie make out a case for investigation and thorough probe. Registration of FIR does not mean that the allegations contained therein are substantiated. FIR is nothing but a first information given to the investigating authority to set the investigative machinery in motion. The truth and veracity of the allegations is, however, required to be verified during the course of investigation. Registration of FIR does not mean that the allegations contained therein are substantiated. FIR is nothing but a first information given to the investigating authority to set the investigative machinery in motion. The truth and veracity of the allegations is, however, required to be verified during the course of investigation. Whether the allegations contained in the FIR are true or false or even actuated by mala fide is a matter which is required to be determined during the course of investigation. The attempt to scuttle the investigation at its inception is more than often counterproductive to the accused. The accused in the FIR, if they claim to be innocent, should be interested to see that a free and fair investigation in the matter is conducted and the allegations are properly verified. It is not understandable as to how the scuttling of investigation at its very inception would inure to the benefit of the accused-petitioners. 8. Having said so, I have carefully gone through the whole record including the status report filed by the Vigilance Organization, Kashmir and find that the allegations contained in the FIR do disclose commission of cognizable offence which needs thorough investigation and probe. If the allegations contained in the FIR, as found substantiated in the preliminary verification that the forest land has been made subject matter of conferring ownership rights on the beneficiary by abuse of the powers conferred upon the petitioners as revenue officers under the Act of 2001, are proved to be correct and substantiated during the investigation, it would definitely disclose the commission of offence both under the J&K Prevention of Corruption Act as well as Section 120-B RPC. 9. Whether the order passed by the petitioner in their capacity as revenue officers was in their bona fide exercise of power; whether it is a case of wrong judgment; whether there was conspiracy amongst the petitioners and the beneficiary; are the matters which can only be verified during the course of investigation. Viewed from any angle, it is in the interest of all including the petitioners to allow the Vigilance Organization to go ahead with its probe. 10. Learned counsel for the petitioners has relied upon a judgment of Jammu Wing of this Court in the case of Dilar Singh and others v. State of J&K and others, (2017) 1 SLJ 437 (HC). 10. Learned counsel for the petitioners has relied upon a judgment of Jammu Wing of this Court in the case of Dilar Singh and others v. State of J&K and others, (2017) 1 SLJ 437 (HC). The aforesaid judgment pertains to the scope of interference by this Court with the FIR and the investigation launched pursuant thereto. The proposition of law laid down in the aforesaid judgment only lays broad parameters which are required to be kept in mind while exercising inherent jurisdiction conferred upon this Court under Section 561-A Cr.P.C. The submission made by the learned counsel for the petitioners, when appreciated in light of the parameters laid down by the Supreme Court for interference, as stated above, does not make out as case for exercising inherent jurisdiction to quash the FIR impugned and the investigation launched pursuant thereto. 11. In view of the foregoing analysis, I do not find any case for interference with the investigation in FIR No.18/2016 registered at Vigilance Organization, Kashmir. Accordingly, the petition is found to be without merit, hence dismissed.