Mohabat Ali Khan vs Ut Of J&K And Others
2021 Latest Caselaw 964 j&K/2

                                                                                    Sr. No.37
                                                                                    Before Notice
                               HIGH COURT OF JAMMU & KASHMIR AND
                                            LADAKH AT SRINAGAR


                        CJ Court
                                                    LPA No.106/2021
                                                    CM No.5617/2021
                                                    CM No.5618/2021

                        MOHABAT ALI KHAN                                   ...APPELLANT(S)
                        Through:-    Mr. Mohsin S. Qadri, Sr. Advocate with
                                     Mr. Mohammad Tahseen, Advocate.

                                             Vs.

                        UT OF J&K AND OTHERS                             ...RESPONDENT(S)

                        Through:-    None.

                        CORAM:-
                                     HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.

(JUDGMENT)(ORAL) 25.08.2021

Per Sanjay Dhar 'J'

1) This appeal is directed against the judgment and order dated

20.08.2021 passed by the Writ Court in a writ petition filed by the

appellant, whereby he had challenged FIR No.08/2021 for offences

under Section 5(1)(e) read with 5(2) of J&K Prevention of Corruption

Act and Section 168 RPC registered with Police Station, Anti-corruption

Bureau, Baramulla. Vide the impugned judgment and order, the writ

petition of the appellant has been dismissed.

2) It has been contended by learned Senior counsel appearing for the

appellant that while dismissing the writ petition, the Writ Court has not MOHAMMAD ALTAF BHAT 2021.08.31 10:35 I attest to the accuracy and integrity of this document LPA No.106/2021 Page |2

dealt with the basic contention of the appellant that the allegations

contained in the impugned FIR do not constitute an offence against him.

He has further argued that at least offence under Section 5(1)(e) read

with 5(2) of J&K Prevention of Corruption Act, Svt. 2006, is not made

out against the appellant even if the contents of the impugned FIR are

taken to be correct at their face value.

3) We have heard learned Senior counsel appearing for the appellant

and perused the record of the case.

4) The appellant had challenged the FIR, primarily, on the ground

that the contents of the same, even if taken to be correct at their face

value, do not constitute an offence against the appellant. The learned

Writ Court while dismissing the writ petition has observed that at this

stage when the facts are hazy, the investigation is at its inception and the

material evidence is yet to be collected, it would not be appropriate to

make a prima facie decision regarding the contentions raised by the writ

petitioner.

5) In order to determine whether any offence is disclosed against the

appellant on the basis of the allegations made in the impugned FIR, it

would be necessary to notice the contents of the FIR which are

reproduced herein-below:

"Verification conducted by Anti-Corruption Bureau into the allegations of possessing of disproportionate assets and indulging in business activities by one Mohabat Ali Khan, Jr. Assistant in RDD Kupwara while in active Government service etc. revealed that the said accused public servant has MOHAMMAD ALTAF BHAT accumulated huge assets beyond his known source 2021.08.31 10:35 I attest to the accuracy and integrity of this document LPA No.106/2021 Page |3

of income in shape of movable/immovable properties on his own name as well as in the name of his family members, the description of which is given below:

1. 1 ½ kanal of land along with the house constructed over it at Sanatnagar Srinagar.

                                           2. One oil filing station       at Bomhama
                                              Kupwara.

3. Land and multi storied shopping complex at Bumhama Kupwara.

4. Land at Hyhama Kupwara.

5. A hot mix plant at Guttlipora Hyhama.

6. Vehicles like loader, paver, tipper, roller etc.

                                           7. Huge bank balance       in different bank
                                              accounts.

Verification has further revealed that the said public servant has indulged in business activities during his service without seeking proper permission from the concerned department. The value of the assets so accumulated as well as the expenditure incurred is found disproportionate to the income earned by him.

The aforementioned facts constitute commission of offences, punishable U/S 5 (1) (e) r/w 5 (2) J&K PC Act Svt; 2006 and section 168 RPC against Mohabat Ali Khan, Jr. Assistant RDD Kupwara S/o Rehmatullah Khan R/o Shartpora Hyhama, Kupwara A/P Housing Colony Sanat Nagar, Srinagar."

6) From a perusal of the contents of the FIR, it appears that on

the basis of the verification conducted by the Investigating Agency, it

was revealed that the appellant, while he was in active Government

service, had accumulated huge assets beyond his known source of

income in the shape of movable/immovable properties in his own name

as well as in the name of his family members. The description of these

MOHAMMAD ALTAF BHAT 2021.08.31 10:35 properties is given in the FIR. Another fact which has been disclosed I attest to the accuracy and integrity of this document LPA No.106/2021 Page |4

against the appellant after the verification is that he has indulged in

business activities during his service without seeking proper permission

from the concerned department.

7) Learned Senior counsel appearing for the appellant has

contended that even if it is assumed that the assets, the particulars

whereof are given in the impugned FIR, have been acquired by the

appellant out of the funds which he earned by indulging in business

activities, as is alleged in in the FIR, at best only an offence under Section

168 RPC is made out. Th submission of learned Senior counsel is that

the assets acquired by the appellant by indulging in business activities

without seeking permission from the competent authority of the

department cannot form the basis for launching prosecution against him

for commission of offence under Section 5(1)(e) read with 5(2) of the

J&K Prevention of Corruption Act.

8) Learned counsel for the appellant has relied upon the

judgment of the Supreme Court in Kanwarjit Singh Kakkar v. State of

Punjab & anr., 2011 Legal Eagle (SC) 405, to buttress his contention that

for the purpose of attracting offence under Section 5(1)(e) of the J&K

Prevention of Corruption Act, only the income received by a person

servant in his capacity as a public servant is required to be taken into

account and not the income earned by him from any other source.

9) In order to test the merits of the aforesaid contention, the

provisions contained in Section 5(1)(e) of the J&K Prevention of

Corruption Act are required to be noticed. It reads as under:

MOHAMMAD ALTAF BHAT 2021.08.31 10:35 I attest to the accuracy and integrity of this document LPA No.106/2021 Page |5

5.Criminal misconduct.

(1) A public servant is said to commit the offence of criminal misconduct--

                                           (a)... ...       ...
                                           (b)... ...       ...
                                           (c)... ...       ...
                                           (d)... ...       ...

(e)if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income."

10) From a perusal of the aforesaid provision, it is clear that for

making out an offence under Section 5(1)(e) of the J&K Prevention of

Corruption Act, it has to be shown that a person is in possession or has,

at any time during the period of his office, been in possession of

pecuniary resources or property disproportionate to his known sources

of income for which the said person cannot satisfactorily account for.

11) It appears to us that the requirement of the aforesaid provision

is not that the pecuniary resources or property disproportionate to the

known sources of income must have been acquired by the person in his

capacity as a public servant. The only requirement that is necessary for

attracting the aforesaid provision is that during the period in question,

the person must have been holding the office of a public servant. It is

immaterial whether he has acquired the property by misuse of his office

or by any other means.

MOHAMMAD ALTAF BHAT
2021.08.31 10:35
I attest to the accuracy and
integrity of this document
                         LPA No.106/2021                                                Page |6




                        12)       In the instant case, the allegation against the appellant is that

while in active service, he was indulging in business activities without

seeking prior permission of the concerned department. Thus, even if it is

assumed that the appellant had acquired the assets mentioned in the

impugned FIR from the income earned out of business activities, the

same would not fall within the definition of "known sources of income"

as the allegation against the appellant is that he has not sought the

requisite permission from the concerned department. "Known sources of

income" means only the income received from lawful sources. It does

not mean the income acquired by the public servant from illicit sources.

The income generated by a public servant by indulging in business

activities without seeking permission from his department, in our view,

would not fall within the definition of "known sources of income".

13) The ratio laid down by the Supreme Court in the case of

Kanwarjit Singh Kakkar (supra) is not applicable to the facts of the

instant case as in the said case the Supreme Court was dealing with the

interpretation of Section 13(1)(d) of the Prevention of Corruption Act,

1988, which corresponds to Section 5(1)(d) of the J&K Prevention of

Corruption Act. In the instant case, the appellant is alleged to have

committed offence under Section 5(1)(e) of the J&K Prevention of

Corruption Act, which has different contours. The judgment is, therefore,

distinguishable on facts and does not apply to the instant case.

14) In view of the foregoing discussion, we are of the considered

opinion that the contents of the impugned FIR, prima facie, disclose MOHAMMAD ALTAF BHAT 2021.08.31 10:35 I attest to the accuracy and integrity of this document LPA No.106/2021 Page |7

commission of offence under Section 5(1)(e) read with 5(2) of J&K

Prevention of Corruption Act and Section 168 RPC and, therefore, the

learned Writ Court has rightly refused to grant any indulgence in favour

of the appellant.

15) For the foregoing reasons, we do not find any ground to

interfere in the impugned judgment passed by the learned Writ Court.

The appeal is found to be without any merit and the same is, accordingly,

dismissed along with connected CM(s).

                                             (SANJAY DHAR)                (PANKAJ MITHAL)
                                                JUDGE                      CHIEF JUSTICE
                        SRINAGAR
                        25.08.2021
                        "Bhat Altaf, PS"
                                       Whether the order is speaking:         Yes/No
                                       Whether the order is reportable:       Yes/No




MOHAMMAD ALTAF BHAT
2021.08.31 10:35
I attest to the accuracy and
integrity of this document