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2018 DIGILAW 936 (JK)

Mohammad Aslam Qureshi v. State of J&K

2018-11-30

SANJAY KUMAR GUPTA

body2018
JUDGMENT : APPCR No. 13/2016 1. For the reasons stated in the application, it is allowed and the requirement of filing of the certified copy of the FIR is dispensed with. Application disposed of. CRMC No. 174/201, IA No.01/2016 1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) petitioner seeks quashment of FIR No.09/1986 registered by the Vigilance Organization, Jammu through the Senior Superintendent of Police and further investigation carried pursuant to registration of aforesaid FIR. 2. The case of the petitioner is that one Abdul Majid S/o Abdul Aziz R/o Chak Mohd. Yar, Tehsil R.S. Pura, District Jammu, filed an application under Section 8 of Evacuees (Administration of Property) Act, 2006 seeking restoration of land situate in Village Deeli, Tehsil Jammu comprising Khasra Nos. 285, 286/1, 287 and372 measuring 47 Kanals 14 Marlas and under khasra Nos. 283, 284, 286/2 and 373 measuring 47Kanals 4 Marlas belonging to one Allah Ditta S/o Noor Mohd. and Karam Ilahi S/o Fazal Din on the ground that he was the only legal heir of the Evacuee. It is relevant to state herein that the said application was filed on 20.02.1981 before the petitioner in the capacity of Tehsildar (Assistant Custodian). Jammu. The said application was dismissed by the petitioner for non-prosecution and was consigned to record, but the same came to be restored by the successors of the petitioner, namely, the then Assistant Custodian Sh., Meharwan Singh who was posted as Tehsildar Agrarian Reforms, Jammu. It is stated that finally the said application was allowed vide Order dated 25.11.1983 by the then Assistant Custodian, Jammu. It is further stated that while investigating a particular case bearing FIR No. 46 of 1985, the Police Station, Vigilance Org. Jammu gathered certain information, accordingly ,registered the impugned FIR bearing No.9 in the year 1986 for the alleged commission of offence under Section 5 (1) (d) of P.C. Act, containing allegations of criminal conspiracy against the petitioner, the then Assistant Custodian, namely, Sh. Asgar Ali and Ch. Abdul Majid who had filed application under Section 8 seeking restoration of the land. 3. Asgar Ali and Ch. Abdul Majid who had filed application under Section 8 seeking restoration of the land. 3. It is contended that after the registration of impugned FIR, the investigation was completed in the year 1989 itself and thereafter the respondent No. 2 vide Communication No. 10-12/SPC dated 08.01.1990addressed to Superintendent of Police (Prosecution),Vigilance Organization, J&K, Jammu, through the medium of which, legal opinion was sought and, accordingly, the Law Officer of the Vigilance Organization opined that no case was made out against the Govt. Official on the ground that the application under Section 8 was decided by Assistant Custodian as a statutory Judicial Authority. It is further contended that hat the order passed by the then Assistant Custodian, Jammu dated 25.11.1983 was challenged by one Siraj-ud-Din before Custodian General, J&K Govt. and during the pendency of aforesaid Revision, the petitioner Siraj-ud-Din died and his daughter, namely, Sharifa Bibi was brought on record as legal heir and even Sharifa Bibi also died during the pendency of the Revision Petition and despite that the Custodian General allowed the Revision Petition and quashed the order dated 25.11.1983 vide his Judgment dated 23.04.2008.. It is stated that Abdul Majid, who filed application under Section 8, preferred Revision. Petition challenging the Order dated 23.04.2008 of Custodian General before the Special Tribunal, Jammu and vide Judgment dated 06.01.2010, the order passed by Custodian General was quashed and the aforesaid Revision Petition is pending adjudication before J&K Special Tribunal, Jammu. It is further stated that in the month of April, 2016, the petitioner was directed by respondent No. 2 to appear before him for the production of Challan/Charge sheet before the Special Judge, Anticorruption, Jammu and in the similar manner, the then Assistant Custodian Sh. Asgar Ali was also directed. After a period of almost 30 years, the respondent No. 2 has again directed the petitioner to cause appearance before the competent Court for production of challan / charge sheet in the aforesaid FIR. 4. Learned counsel for the petitioner during the course of arguments has produced an order dated 12.04.2018, passed by this Court in 561-A No. 15/2009 in a connected matter filed by co-accused in FIR No. 09/1986. It appears that vide order dated 12.04.2018 the aforesaid petition has been allowed and FIR in question has been quashed on the same grounds, which petitioner has taken in this petition. It appears that vide order dated 12.04.2018 the aforesaid petition has been allowed and FIR in question has been quashed on the same grounds, which petitioner has taken in this petition. The relevant parts of order reads as under:- 5. Heard and considered. 6. Section 29 of the Evacuees’ (Administration of Property) Act, 2006 makes it abundantly clear that the Custodian while holding an inquiry 561-ANo.15/2009, 174/2016 & C Rev No.13/2017 Page 5 of 6 under the Act shall have the same powers as are vested in a Court under the provisions of the Code of Civil Procedure. It also provides and envisions that the inquiry by the custodian shall be deemed to be a judicial proceeding within the meaning of Section 193 and 228 of the RPC and the custodian shall be deemed to be a Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure. Clause (b) of Section 2 of the Act running under the head “Definitions” provides that “Custodian” means the custodian or custodians for the state or part thereof and includes any Additional, Deputy or Assistant Custodian of evacuee property appointed for the state or part thereof. Going by the definition of the word “Custodian” as it exists in the Act, it can well be said that it brings within its ambit and fold an Assistant Custodian of the evacuee property also, which post the petitioner was holding at the time of passing the order in the application under Section 8 of the Act. On the face of this statutory provision, what can be said at the first blush is that while deciding an application under Section 8 of the Act, the Assistant Custodian is vested with the powers of a Civil Court. The petitioner, in deciding the application under Section 8 of the Act has in exercise of the powers vested in him decided the same by an order passed by him. Since the Assistant custodian, i.e., the petitioner was invested with the powers to pass an order in the application under Section 8 of the Act, such an order may be based on the correct appreciation of the material or it may not be in tune and in line with the facts and the law. Since the Assistant custodian, i.e., the petitioner was invested with the powers to pass an order in the application under Section 8 of the Act, such an order may be based on the correct appreciation of the material or it may not be in tune and in line with the facts and the law. Any mistake or mistakes as may occur in an order has/have to be rectified/corrected in accordance with the provisions of the Act which makes a room for filing an appeal, review and revision as available under Section 30 of the Act. 7. A wrong/incorrect or even an illegal or perverse order cannot fall within the definition of an offence under the provisions of the Prevention of Corruption Act, merely because some procedural irregularities are 561-A No.15/2009, 174/2016 & C Rev No.13/2017 Page 6 of 6 noticed by the court. No finality is attached to an order passed by the Assistant Custodian. It can be challenged before the authority designated under the Act as has been done in the instant case. The power to be exercised by the Assistant Custodian is a power vested with him under a statute and under the colour of his office he exercises the power of a civil court. Therefore, the action of the petitioner in passing an order under Section 8 of the Act would not fall within the purview of Section 5(1) (d) of Prevention of Corruption Act. An order passed by the civil court which is bad or perverse would not per-se mean that its maker can be prosecuted under the provisions of the Prevention of Corruption Act. In such a case the scheme as provided and postulated under the Act has to be followed by the aggrieved person. 9. Viewed in the above context, the FIR bearing No. 9/1986 registered by the Vigilance Organization Jammu against the petitioner for an offence punishable under Section 5(1)(d) of Prevention of Corruption Act is a sheer abuse of the process of law. The act attributed to the petitioner does not constitute any offence much less an offence punishable under Section 5(1) (d) of Prevention of Corruption Act as a corollary to which, the impugned FIR and all the proceedings emanating there from are quashed. 8. In this view of the matter, the instant petition is also allowed on the same grounds qua the petitioner. Accordingly, Cr. Rev. 8. In this view of the matter, the instant petition is also allowed on the same grounds qua the petitioner. Accordingly, Cr. Rev. No. 13/2017 filed by the respondent (V O J) against the order dated 12.4.2016 of court below by virtue of which challan was returned, has become infructous, it is dismissed.