Riyaz Ahmad Masoodi & Ors vs Commissioenr/Secretary General ...
2022 Latest Caselaw 698 j&K/2

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

                                              Reserved on: 27 .04.2022
                                              Pronounced on: 25.05.2022


                       CRM(M) No.252/2020

RIYAZ AHMAD MASOODI & ORS                       ... PETITIONER(S)
Through: - Mr. Arif Sikandar Mir, Advocate.

Vs.

COMMISSIOENR/SECRETARY GENERAL ADMINISTRATION
DEPARTMENT AND OTHERS         ...RESPONDENT(S)
Through: - Ms. Asifa Padroo, AAG-for R1, R2 & R4.
            Mr. T. M. Shamsi, ASGI-for R3


CORAM:      HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                            JUDGMENT

1) The petitioners have challenged FIR No.23/2011 for offences

under Section 5(1)(c)(d) read with 5(2) of J&K Prevention of

Corruption Act, 2006, and Section 120-B RPC registered with Police

Station, Vigilance Organization, Kashmir.

2) As per the impugned FIR, a verification was conducted by

Vigilance Organization, Kashmir, and after verification, it was

revealed that During, September, 2009-10, the officers/officials of

Soil Conservation and Forest Conservation Division Phuroo Langate

Handwara, have shown construction of 81 Farm Ponds under Micro

Watershed Scheme in the ranges of Lolab, Talri, Hamal and Kehmil

@ Rs.19,429/ per pond and released an amount of Rs.15,65,6668/. It

was further revealed that Bashir Ahmad, DFO, Soil Conservation and

Forest Conservation Division Phooru Langate, Handwara, under a

well-knit conspiracy with other officers/officials of the Division, has

acted on exaggerated project report of the then DFO, Soil

Conservation and Forest Conservation, Phoroo Langate Handwara,

Shri Abdul Rashid Hazari, prepared by him in the year 2008-09 and

has executed the work of 81 Farm Ponds through fictitious muster

rolls and on exorbitant rate of Rs.11,702/ per Farm Pond against the

actual construction cost of Rs.7,726/ per Farm Pond thereby causing a

loss of Rs.9,17,862/ to the State exchequer. It was further revealed

that loss so caused to the State exchequer includes Rs.3,15,060/ for

construction 30 Farm Ponds at Kehmil, Rs.1,87,238/ for construction

of 16 Farm Ponds at Hamal, Rs.1,63,828/ for construction of 14 Farm

Ponds at Talri and Rs.2,45,742/ for construction of 21 Farm Ponds at

Lolab. According to the verification, the aforementioned omissions

and commission on the part of the accused public servants, namely,

Shri Ab. Rashid Hazari, the then DFO, Shri Bashir Ahmad, the then

DFO, in league with Noor-ul-Amin, Range Officer, Kehmil, Shri

Riyaz Masoodi, Range Officer Hamal, Shri Ghulam Hassan Shah,

Range Officer, Talri, Shri Abdul Majeed Kuchay, Range Officer,

Lolab, Shri Parvaiz Ahmad Bhat, Block Forester, Shri Wali

Mohammad, Block Forester, Shri Mohammad Sultan Lone, Block

Forester and Shri Javid Ahmad, Block Forester, constitute offences

under Section 5(1)(d), 5(2) of the J&K Prevention of Corruption Act

read with Section 120-B RPC.

3) The petitioners, who have been nominated as accused in the

impugned FIR, have challenged the same on the grounds that in the

instant case, prior to registration of the impugned FIR, the preliminary

enquiry has been conducted by the investigating agency for more than

one year whereas, as per law, the preliminary enquiry has to be

completed within seven days. Thus, according to the petitioners, if

preliminary enquiry is conducted beyond seven days, it amounts to

investigation, which is impermissible without registration of the FIR;

that Vigilance Organization has not sought approval of the Vigilance

Commission before registration of the impugned FIR, which, as per

Rule 23 of the Vigilance Rules, is mandatory; that the work, which is

subject matter of the impugned FIR, has been executed as per the

operational guidelines and government orders framed by the

Government of India and Government of Jammu and Kashmir and, as

such, no offence is made out against the petitioners and that there has

been delay in completion of investigation of the case, which amounts

to infringement of fundamental right of the petitioners guaranteed

under Article 21 of the Constitution, as such, the impugned FIR

deserves to be quashed.

4) The petition has been resisted by the respondent by filing a

response/status report. In its status report, the respondent has, besides

reiterating the facts of the case, submitted that after investigation of

the case, offences under Section 5(1)(c)(d) read with 5(2) of Jammu

and Kashmir Prevention of Corruption Act and Section 120-B, 468,

471 RPC stand established against the petitioners. The status report

further indicates that the Government has already accorded sanction

for prosecution of in-service accused public servants/petitioners in

terms of Government Order No.50-JK-GAD(Vig) of 2020 dated

07.10.2020 read with Government Order No.GAD(Vig)25-SP/2019

dated 20.10.2020. It is also averred that one accused, namely, Ghulam

Nabi Lone, has expired during the investigation of the case. It is

submitted in the status report that investigation of the case is complete

and only charge sheet is to be filed against the accused. In fact, a copy

of the proposed charge sheet has been produced by respondent for

perusal of the Court.

5) I have heard learned counsel for the parties and perused the

material on record including the proposed charge sheet.

6) During the course of arguments, learned counsel for the

petitioners has laid much stress on the following grounds:

(I) That in the instant case the preliminary enquiry undertaken by the respondent has continued for more than one year, which, in view of the law laid down by the Supreme Court Lalita Kumari v. Govt. of UP &Ors., (2014) 2 SCC 1, is impermissible;

(II) That as per the status report filed by the respondent, the officer conducting the preliminary enquiry has taken steps and collected material in the manner as if he was conducting the investigation of the case. It has

been submitted that undertaking these steps by the enquiry officer, prior to the registration of the FIR is impermissible in law and, as such, the whole investigation is vitiated;

(III) That the investigating agency prior to the registration of FIR has not sought approval of the Vigilance Commission in terms of Rule 23 of the Vigilance Rules, which renders the registration of the impugned FIR and investigation commenced pursuant thereto non- est in the eyes of law;

(IV) That the work which is subject matter of the impugned FIR has been executed at the rates less than the rates approved by the Government of India/Government of Jammu and Kashmir, as such, there has been no loss to the State exchequer. Thus, according to the petitioners, no offence is made out against them.

7) In support of first two grounds urged by the learned counsel for

the petitioners, reliance has been placed upon the judgment of the

Supreme Court in the case of State of Uttar Pradesh vs. Bhagwant

Kishore Joshi, AIR 1964 SC 221 and the judgment of the High Court

of Karnataka in the case of Christy Fried Gram Industry Office vs.

State of Karnataka, 2015 SCC Online Kar. 6816.

8) As already noticed, it has been contended that it was not open

to the investigating agency to drag the preliminary enquiry beyond

seven days, as has been provided in the judgment of the Supreme

Court in Lalita Kumari's case (supra). A perusal of the record of the

files of preliminary enquiry reveals that the preliminary enquiry was

initiated by the respondent on the basis of a source information and a

team of officers of respondent Organization was constituted on

01.03.2010. The impugned FIR has been registered on 29.11.2011,

meaning thereby that preliminary enquiry in this case has continued

for almost one and a half year. The question that arises for

consideration is as to whether merely because preliminary enquiry of

a case has continued beyond the period of seven days, the registration

of the FIR and the investigation conducted pursuant thereto would get

vitiated.

9) The functioning of Vigilance Organization is governed by the

Jammu and Kashmir Vigilance Manual. Chapter-3 of the said Manual

provides for procedure for dealing with complaints. In the instant case

a preliminary enquiry has been conducted on the basis of a source

information which has led to registration of a preliminary enquiry.

Clauses 3.16 to 3.24 of the Vigilance Manual prescribe the procedure

for conducting preliminary enquiry. Out of these, Clauses 3.16, 3.17,

3.18, 3.21 and 3.23 are relevant to the context and the same are

reproduced as under:

3.16. When a complaint or information discloses adequate material indicating misconduct on the part of a public servant which needs a detailed verification prior to registration of a case U/S 154 Cr. PC, a Preliminary Enquiry (PE) can be ordered.

A PE should normally be completed in a period of six months. The PE will be registered on a given proforma (Annexure K). Sometimes courts also order an enquiry by the State Vigilance Organization. Such preliminary enquiries should also be registered after approval of the

Commissioner of Vigilance. A PE may be converted into FIR, with the prior concurrence of central office, as soon as sufficient material becomes available to show that, prima-facie, commission of a cognizable offence under Prevention of Corruption Act is made out. When the material available indicates ingredients of misconduct alone and not criminal misconduct, a self contained note should be sent to the appropriate disciplinary authority for departmental action.

3.17 It is necessary to order a PE in every case before an FIR is registered. In the course of any secretary or open enquiry or JSC, whenever there is sufficient material disclosing commission of an offence of "criminal misconduct" under the PC Act, an FIR can directly be registered.

3.18 While recommending registration of PE pertaining to abuse of official position by a public servant in the matter of business/commercial decision, the important difference between a business risk and a malafide intention should be kept in view so as to ensure that while corrupt public servants are suitably dealt with, the bonafide business/commercial decisions taken by public servants in discharge of their official duties are not viewed with suspicion.

3.21 Registration of Preliminary Enquiries: When a decision to register a PE is taken, a report should be drafted and vetted by the Branch SSP and entered on the printed form of the PE register. A copy of the PE registration form should be sent to Central office for record and reference. As far as possible details of officials suspected to be involved in the alleged criminal misconduct should be recorded in the PE repot. Only those officers should be mentioned by name against whom clear and overt acts/omissions are attributed. Those against whom no prima-facie material is available should not be mentioned in the PE report.

3.23 Collection of documents & recording of statements in PE: In the course of a PE relating to the offences of bribery and corruption, adequate number of witnesses need to be examined and their statements recorded and signatures appended. Documents required to establish the

offence need to be collected. A proper receipt of original documents/records needs to be given to the office from where they are collected whenever such collection of original records becomes necessary. Otherwise only photocopies of documents duly attested by the head of office may be collected. In no case notices U/S 94 Cr. PC and 160 Cr. PC need to be issued to procure documents and witnesses in the course of a PE.

10) From a perusal of Clause 3.16, it appears that preliminary

enquiry should normally be completed within a period of six months.

Clause 3.18, quoted above, makes it clear that while registering a

preliminary enquiry pertaining to abuse of official position by a public

servant, important difference between a business risk and malafide

intention has to be kept in mind so that bonafide decisions taken by

public servants in discharge of their official duties are not viewed with

suspicion. Clause 3.21 makes it clear that only those officers should

be mentioned by name against whom there are clear and overt

acts/omission attributed. As per Clause 3.23, an enquiry officer has to

examine the witnesses, record their statements and collect documents.

It further provides that only photocopies of the documents should be

collected unless original record becomes necessary. It further provides

that notices under Section 94 and 160 of the Jammu and Kashmir Cr.

P. C need not be issued to procure documents and witnesses in the

course of a preliminary enquiry.

11) From the above it is clear that the Vigilance Organization is

vested with power to conduct preliminary enquiries before registering

an FIR. Clauses of the Vigilance Manual, referred to above, make it

clear that purpose of registration of a preliminary enquiry is to protect

the public servants from reckless, frivolous and malicious complaints.

Before registering an FIR on the basis of an information or complaint,

the Vigilance Organization has to ascertain whether there is sufficient

material available to show that, prima facie, a cognizable offence

under the provisions of the Prevention of Corruption Act is made out.

It has to be ensured that corrupt public servants are suitably dealt with

but public servants who have taken decisions while discharging their

official duties are not viewed with suspicion. In short, the only

purpose of conducting a preliminary enquiry is to protect the honest

public servants from reckless criminal prosecutions because with the

registration of an FIR, a person is exposed to many adverse

consequences including the possibility of arrest.

12) Having regard to the nature of offences defined under the

provisions of the Prevention of Corruption Act, it is necessary to

procure, peruse and scan necessary records which generally run into

thousands of pages. It is practically impossible to conclude the

preliminary enquiry in such cases within a short period of seven days.

It is in this backdrop that the Vigilance Manual has provided a normal

period of six months to complete the preliminary verification. In the

instant case, it has taken respondent more than one and a half year to

conduct the preliminary enquiry but having regard to the nature of

allegations against the petitioners and the volume of record, which has

been collected and perused by the enquiry officer during the course of

preliminary enquiry, the time taken in completion of preliminary

enquiry does not appear to be unreasonably long. Even otherwise, the

petitioners have not been able to point out anything to show that the

time taken in completion of preliminary enquiry has caused any

prejudice to them. In my considered opinion, merely because

preliminary enquiry has taken a long time to complete, cannot vitiate

the whole proceedings, particularly when no prejudice has been

caused to the accused by such act of the enquiry officer.

13) So far as the contention of the petitioners that the enquiry

officer in the instant case has, during the course of enquiry,

undertaken certain steps which can only be taken after registration of

FIR, is concerned, the same is also without any merit. A perusal of the

enquiry file reveals that the respondent, during the course of

preliminary enquiry, has only collected photocopies of the relevant

record from different offices. Statement of none of witnesses has been

recorded during the preliminary verification. Merely because spot

inspection has been made by the enquiry officer and certain officials

of the Vigilance Organization including its technical staff does not

mean that the respondent has taken steps which are only permissible

after registration of the FIR. It is true that prosecution is not justified

in undertaking investigation prior to registration of the FIR in the

guise of preliminary enquiry but then, as already noted, the respondent

has not taken any step during the preliminary enquiry that would

amount to conducting investigation of the case.

14) In Bhagwant Kishor Joshi's case (supra), it has been laid down

that investigation consists of steps like proceeding to spot,

ascertainment of the facts and circumstances of the case, discovery

and arrest of the suspected offender, collection of evidence and

formation of opinion. In the instant case, none of the accused has been

arrested during the preliminary verification nor the statements of

witnesses have been recorded. The only thing which has been done in

the instant case during the preliminary enquiry is collection of

photocopies of the record from the relevant departments, which is

permissible in terms of Clause 3.23 of the Vigilance Manual, quoted

hereinabove. In fact, as per the said Clause, even recording of

statements of witnesses is permissible, though the same cannot be

used for any purpose during the trial of the case. As per the said

Clause, collection of photocopies of documents is also permissible,

that is what has been done by the enquiry officer in the instant case.

15) The Supreme Court in the case of P. Sirajuddin vs. State of

Madras, (1970) 1 SCC 595, has clearly laid down that conducting of

enquiry prior to registration of FIR is permissible in law. Para 17 of

the said judgment is relevant to the context and the same is

reproduced as under:

17. In our view the procedure adopted against the appellant before the laying of the first information report though not in terms forbidden by law, was so unprecedented and outrageous as to shock one's sense of justice and fairplay. No doubt when allegations about dishonesty of a person of the appellant's rank were brought to the notice of the Chief Minister it was his duty to direct as enquiry into the matter. The Chief

Minister in our view pursued the right course. The High Court was not impressed by the allegation of the appellant that the Chief Minister was moved to take an initiative at the instance of person who was going to benefit by the retirement of the appellant and who was said to be a relation of the Chief Minister. The High Court rightly held that the relationship between the said person and the Chief Minister, if any, was so distant that it could not possibly have influenced him and we are of the same view. Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can of taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge-sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved.

It is only thereafter that a charge-sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be restored to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of

the Code of Criminal Procedure by lodging a first information report.

16) Recently, in the case of Charansingh vs. State of Maharashtra

and others, (2021) 5 SCC 469, the Supreme Court, after taking note of

the ratio laid down by it in Lalita Kumari's case, has dealt with the

scope of a preliminary enquiry. The Court, after taking note of the

provisions contained in Maharashtra State Anticorruption Manual and

the ratio laid down by it in P. Sirajuddin's case (supra), observed as

under:

"9.1 Thus, an enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After the enquiry/enquiry at pre- registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged. However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made.

9.2 Even as held by this Court in the case of Superintendent of Police, CBI v. Tapan Kumar Singh (2003) 6 SCC 175, a GD entry recording the information by the informant disclosing the commission of a cognizable offence can be treated as FIR in a given case and the police has the power and jurisdiction to investigate the same. However, in an appropriate case, such as allegations of misconduct of corrupt practice by a public servant, before lodging the first information report and further conducting the investigation, if the preliminary enquiry is conducted to ascertain whether

a cognizable offence is disclosed or not, no fault can be found. Even at the stage of registering the FIR, what is required to be considered is whether the information given discloses the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage, it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. Despite the proposition of law laid down by this Court in catena of decisions that at the stage of lodging the first information report, the police officer need not be satisfied or convinced that a cognizable offence has been committed, considering the observations made by this Court in the case of P. Sirajuddin (supra) and considering the observations by this Court in the case of Lalita Kumari (supra) before lodging the FIR, an enquiry is held and/or conducted after following the procedure as per Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual, it cannot be said that the same is illegal and/or the police officer, Anti-corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry at preregistration of FIR stage.

17) From the aforesaid ratio laid down by the Supreme Court, it is

clear that scope of preliminary enquiry prior to registration of an FIR

is to ascertain whether cognizable offence is disclosed or not and such

an enquiry is not only permissible but desirable in cases where

allegations are of misconduct and corrupt practices. It is also

manifestly clear that holding of preliminary enquiry provides a

foolproof safeguard and procedure before lodging an FIR against a

public servant who is facing allegations of corrupt practices.

18) Thus, the contention of learned counsel for the petitioners that it

was not open to respondent to hold preliminary enquiry which went

on for more than one year and to collect material during the course of

such preliminary enquiry, is without any merit. As already noted, that

having regard to the nature of allegations which were subject matter

of the enquiry, it would not have been possible for the enquiry officer

to complete the enquiry within a short span of time as it involved

collecting, perusing and scanning of voluminous records from

different offices. The record further shows that the enquiry officer has

not undertaken any such steps that would amount to investigation of

the case prior to registration of FIR. What the enquiry officer has done

is within the parameters of his powers as an enquiry officer prescribed

under the Vigilance Manual. Thus, registration of the impugned FIR

on the basis of the preliminary enquiry conducted by the enquiry

officer is in accordance with the law.

19) The reliance placed by the petitioners upon the ratio laid down

by the Karnataka High Court in Christy Fried Gram Industries case

(supra) is misplaced as the same is not applicable to the instant case.

In the said case, the enquiry officer had taken steps during the

preliminary enquiry which amounted to investigation of the case. It is

in those circumstances coupled with certain other facts that were

peculiar to the said case, that a Single Judge of the Karnataka High

Court held that entire proceedings stood vitiated as it amounted to

abuse of process of the court.

20) It has been contended by learned counsel for the petitioners that

prior to registration of impugned FIR, it was incumbent upon the

respondent to seek approval of Vigilance Commission in terms of

Rule 23 of the Jammu and Kashmir State Vigilance Rules, 2013. In

this behalf he has relied upon the judgment of this Court in the case of

Mubassir Latifi vs. State of J&K & others (561-A No.123/2016

decided on 05.10.2017).

21) The ratio laid down in Mubassir Latifi's case (supra) is not

applicable to the instant case because J&K State Vigilance

Commission Rules, 2013 stand repealed and replaced by J&K State

Vigilance Commission Rules, 2019, and there is no provision in the

Rules of 2019 that would make it incumbent upon the investigating

agency to seek prior approval of the Vigilance Commission before

registration of an FIR or before filing a charge sheet. Even otherwise,

the record shows that after conducting the preliminary enquiry, report

thereof has been placed by the respondent before the Vigilance

Commission in terms of letter dated 13.10.2011, seeking approval of

the Commissioner of Vigilance, whereafter the impugned FR has been

registered. So, even if it assumed that the Rules of 2013 were

applicable at the relevant time, the requirements of Rule 23 of the said

Rules stand satisfied in the instant case.

22) Lastly, it has been contended by learned counsel for the

petitioners that the work which is subject matter of the impugned FIR

has been executed as per the guidelines and norms issued by the

Government of India and Government of Jammu and Kashmir, as

such, no offence is made out against the petitioners. It is contended

that as per the applicable guidelines, each Farm Pond was to be

constructed @Rs.19,428/ whereas the cost incurred on each Farm

Pond in the instant case comes to only Rs.7,726/ and, thus, it cannot

be stated that work has been executed at exorbitant rates by the

petitioners or that there has been any loss to the State exchequer.

23) It is true that the approximate cost for construction of each

Farm Pond as per operational guidelines comes to Rs.19,428/ but then

in the instant case, the material collected by the investigating agency

during the investigation of the case shows that the ponds which have

been constructed are not as per the prescribed specifications. It has

been found that the ponds that have been constructed are of temporary

nature and are earthen. It has also been found that there is a

contradiction between the drawings proposed in the DPR and the

work executed on spot. While as per the original project report,

drawings of a rectangular section pond are provided but on analysis of

the work on spot, it was found to be of a trapezoidal section. It has

also been found that there is a provision for a catchment drain for each

pond in the DPR but the same has not been executed on ground. The

material collected during investigation of the case shows that the

accused officers/officials have prepared fictitious muster rolls

showing payments made to labourers and when the statements of

these labourers were recorded during investigation of the case, they

have denied having executed the work and have also denied having

receiving the payments. As per the FSL report, finger prints on the

muster rolls were found to be those of accused officials and these

fictitious muster rolls have been certified by the accused officials.

24) From the aforesaid material assembled by the investigating

agency during the investigation of the case, it cannot be stated that it

is a case where no offence is disclosed from the allegations made in

the impugned FIR and the material collected by the investigating

agency. The material assembled by the investigating agency not only

shows that the work has not been executed in accordance with the

prescribed specifications/DPR but it is also shows that the payments

have been made to fictitious persons. Thus, in the face of this

overwhelming material on record, the prosecution against the

petitioners does not deserve to be quashed.

25) For the forgoing reasons, I do not find any merit in this petition

and the same is dismissed. The interim order shall stand vacated.

(SANJAY DHAR) JUDGE

Srinagar, 25 .05.2022 "Bhat Altaf, PS"

                   Whether the order is speaking:         Yes/No
                   Whether the order is reportable:       Yes/No