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2021 DIGILAW 196 (JK)

Gh. Mohammad Lone v. Union Territory of J&K

2021-04-27

SANJEEV KUMAR

body2021
Judgment : Sanjeev Kumar, J. 1. This is a quashment petition by the petitioners directed against FIR No. 16/2018, registered by Anti Corruption Bureau, Srinagar (for short the ACB hereafter). The petitioners also pray for a mandamus to the respondents not to treat the registration of FIR against them as an impediment in the future promotions of the petitioners. The quashment of the FIR is sought in the context of factual narration given by the petitioners in the petition, which goes as under:- 2. In Sopore Municipality, eight (8) consolidated wagers, working as sweepers, drivers etc. since 2000 had been pressing for their regularization on the ground that they had completed more than ten years of service and were thus entitled to regularization of their services. The then Executive Officer, Mr. Latief Ahmed Mir conceded to their request and passed an order of regularization in their favour on 08.07.2013 and all the eight persons were put in regular pay scale of Rs. 2550-3200 ( plus usual allowances) with immediate effect and the order was sent to respondent No. 4 for grant of necessary approval. The respondent No.4, it is claimed, neither cancelled the said order nor accorded any formal approval and, as a result thereof, the then Executive Officer did not give effect to the regularization of the aforementioned eight consolidated workers till he was in office. Even the Executive Officers, who later on replaced and followed in office Mr. Latief Ahmed Mir, also did not release the regular pay scale in favour of the consolidated workers. The petitioner No.1 took over as Executive Officer of Sopore Municipality in July, 2016 when petitioner No.2 was posted there as Secretary. It is stated that in July, 2016 the Valley was reeling under worst law and order problem due to Burhan Wani episode. Taking benefit of the situation, the consolidated workers exerted undue pressure on the petitioners for release of pay scale in terms of the order of their regularization passed by Mr. Latief Ahmed Mir in the year 2013. They even threatened not to perform their duties and let the heaps of garbage accumulate on the roads and streets of the City. The petitioner No.1 claims that he brought all these facts to the notice of respondent No.4 and requested him for release of pay scale in favour of the consolidated workers. Latief Ahmed Mir in the year 2013. They even threatened not to perform their duties and let the heaps of garbage accumulate on the roads and streets of the City. The petitioner No.1 claims that he brought all these facts to the notice of respondent No.4 and requested him for release of pay scale in favour of the consolidated workers. Respondent No.4, as is claimed, not only orally conveyed his approval but also released funds to the tune of Rs. 2 Lacs and gave go ahead to the petitioner No.1. Petitioners claim that in these circumstances, salary of the aforesaid persons was released in the regular pay scale and their service books etc. were prepared. Neither respondent No.4 nor any other authority objected to such course of action adopted by the petitioners. It was, however, after some time the audit party raised some objections with regard to the regularization of the eight aforementioned consolidated workers on the ground that in terms of SRO 417 of 2008, the Executive Officer was not competent to issue any regularization orders and, therefore, release of salary in their favour by the petitioners was not justified. 3. The petitioner No.1 further submits that the Directorate of Local Bodies stopped the release of funds to meet the salary of these regularized eight consolidated workers with effect from January, 2017 which constrained the petitioner No.1 to withdraw the order of regularization of these consolidated workers issued by the then Executive Officer on 08.07.2013. This was done by petitioner No.1 vide his order No. MC/SPR/Estt/17/1671-72 dated 28.06.2017. It is also averred that this order of cancellation passed by petitioner No.1 was challenged by the consolidated workers in SWP No. 1719/2017 in which a Bench of this Court vide interim order dated 25.08.2017 stayed the cancellation order. Despite the order having been stayed by this Court, the salary in favour of the aforementioned persons was not released by the officers of Sopore Municipality and, accordingly, the consolidated workers filed a contempt petition No. 822/2017 and, at the pains of committing contempt, the officers of Sopore Municipality released the salary of the consolidated workers. 4. The petitioners claim that, though they have not committed any act or omission which would be tantamount to misconduct, yet the ACB has served upon them a questionnaire, reading whereof would indicate that the petitioners have already been held guilty of misconduct by the ACB. 4. The petitioners claim that, though they have not committed any act or omission which would be tantamount to misconduct, yet the ACB has served upon them a questionnaire, reading whereof would indicate that the petitioners have already been held guilty of misconduct by the ACB. Both the petitioners have replied the questionnaire and have explained their position. The petitioners, however, apprehend that, despite having explained their position to the satisfaction of of the Investigating Officer, they are most likely to be booked in the FIR and if that is done, they would not only be put to unnecessary harassment but their service career will also be jeopardized. 5. The petitioners seek to challenge the impugned FIR primarily on the ground that the acts and omissions that are attributed to the petitioners in the questionnaire served upon them do not constitute offences under Sections 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 2006 and, therefore, they cannot be booked in the aforesaid FIR. It is also challenged on the ground that the matter with regard to legality or otherwise of the regularization of the consolidated workers is subjudice before this Court and, therefore, the ACB has no jurisdiction to proceed with the investigation of the FIR. 6. The petitioner No.1 also claims that the order of regularization in favour of the consolidated workers was issued by the then Executive Officer of Sopore Municipality, Mr. Latief Ahmed Mir in the year 2013 and the petitioners only gave effect to the aforesaid order, that too, after seeking oral approval from respondent No.4. Therefore, the petitioners have not committed any misconduct which could be made subject matter of investigation in FIR No. 16/2018. 7. Having heard learned senior counsel for the petitioners and perused then record, I am of the view that this petition, at this stage, is grossly premature. 8. The petitioners have only been served with a questionnaire to which they also claim to have responded. The Investigation officer is yet to take a call as to whether the explanation tendered by the petitioners is sufficient enough to exculpate them from the allegations those have surfaced in the investigation of the FIR No. 16/2018. The petitioners are yet to be booked in the FIR. The Investigation officer is yet to take a call as to whether the explanation tendered by the petitioners is sufficient enough to exculpate them from the allegations those have surfaced in the investigation of the FIR No. 16/2018. The petitioners are yet to be booked in the FIR. Otherwise also what is contended by the learned senior counsel appearing for the petitioners may constitute defence of the petitioners but the same cannot be accepted as a gospel truth at this stage to quash the FIR. Given the nature of allegations contained in the questionnaire served upon the petitioners, it is necessary that an in depth investigation in the matter is made and truth is unravelled. Prima facie, the Executive Officer of the Municipality is not the authority to appoint any employee or direct regularization of the daily wagers/consolidated workers as permanent employees in the Municipality. Mr. Latief Ahmed Mir has prima facie exceeded his powers and directed regularization of eight consolidated workers without having the approval from the competent authority i.e. respondent No.4. This has been so pointed out by the audit authority in its inspection report. From bare perusal of order dated 08.07.2013, it clearly transpires that the than Executive Officer Mr. Latief Ahmed Mir did not even sought the approval of respondent No.4. It is also interesting to note that Mr. Latief Ahmed Mir passed the order of regularization on 08.07.2013 but the same did not see the light of the day till the petitioner No.1 joined there as Executive Officer. Without trying to find out the exact reasons as to why the order of 2013 had not been given effect to, petitioner No.1went ahead and implemented the same by releasing the regular pay scale in favour of eight beneficiaries of the order of regularization. He claims to have sought the verbal approval from respondent No.4 but there is nothing on record to indicate to that effect. 9. Be that as it may, the action of petitioners is subject matter of investigation. There is also no plausible explanation forthcoming from petitioner No.1 as to why, just after few months, he cancelled the order of regularization issued by his predecessor in the year 2013. He cites non-availability of funds as reason for cancellation of the order. Any way, this is a matter which needs thorough probe and investigation. There is also no plausible explanation forthcoming from petitioner No.1 as to why, just after few months, he cancelled the order of regularization issued by his predecessor in the year 2013. He cites non-availability of funds as reason for cancellation of the order. Any way, this is a matter which needs thorough probe and investigation. It is true that the order of cancellation passed by petitioner No.1 is subject matter of adjudication in a writ petition pending in this Court and this Court, by way of interim order, has stayed it but that does not in any manner take away the power of the investigating authority to investigate the matter to find out; that whether there is criminal angle to the transaction or not; whether the orders passed by the petitioners are in the bonafide exercise of their executive power or is sheer manipulation to confer wrongful benefit on eight persons at the cost of the public exchequer and; whether or not these have been issued for some ulterior considerations, are the questions that can be determined only after a thorough probe and investigation is made by the respondents. There is thus no point to stall the investigation at this point of time. 10. At this stage I deem it appropriate to refer to the legal position with regard to the scope of Section 482 Cr.P.C exposited by the Supreme Court in a recent judgment in M/S Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra and others (Criminal Appeal No. 330/2021 decided on 13.04.2021). Paragraph 23rd of the judgment, which contains the conclusions of three Judge Bench are note worthy and are thus reproduced as under:- “23. Paragraph 23rd of the judgment, which contains the conclusions of three Judge Bench are note worthy and are thus reproduced as under:- “23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences; iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.” (Underlined by me) 11. In view of the aforesaid settled legal position, I do not find it a fit case for interference in the investigation launched by the respondents pursuant to registration of FIR Nos. 16/2018. 12. The apprehension of the petitioners, that registration of impugned FIR against them may become impediment in the grant of future promotions in their favour, is also misplaced, in that, the legal position in this regard is also equally well settled in Union of India v. K. V. Jankiraman, 1991 (4) SCC 109 , in which it has been authoritatively held that mere registration of FIR against an employee is no ground to deny him promotion. It is only where the charge sheet has been presented and the charges have been framed, the employer may defer the promotion case of delinquent and resort to sealed cover procedure. 13. For the foregoing reasons I do not find it a fit case for indulgence at this stage to quash the impugned FIR by exercising the inherent powers vested in the Court by Section 482 Cr.P.C. This petition is thus found to be without merit and is, accordingly, dismissed.