Jammu & Kashmir High Court
Reserved On: 21.07.2023 vs State Of Jammu And Kashmir Through ... on 19 August, 2023
Sr. No. 1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM(M) No. 703/2017
Reserved on: 21.07.2023
Pronounced on: 19.08.2023
Gian Chand Khajuria age 49 years S/o Puran .....Petitioner(s)
Chand Khajuria R/o H. No. 38 Lane-2 Block-
B Roop Nagar Enclave Jammu.
Through :- Sh. Rahul Pant, Sr. Advocate with
Ms. Palak Sharma, Advocate
V/s
1.State of Jammu and Kashmir through Police .....Respondent(s)
Station Vigilance Organization Jammu.
2.Incharge Police Station Vigilance
Organization Jammu.
Through :- Mrs. Monika Kohli, Sr. AAG.
CORAM: HON‟BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
1. Petitioner by the medium of instant petition filed under section 561-A [now
Section 482 Cr.PC] of Code of Criminal Procedure (hereinafter referred as
to the „Code‟) has sought the quashment of FIR No. 28 of 2017 registered
with Police Station Vigilance Organization Jammu against him for
commission of offences punishable under Sections 5(1)(c)(d) r/w Section
5(2) of the Jammu and Kashmir Prevention of Corruption Act Svt 2006 r/w
Sections 420, 120-B RPC, on the following grounds:-
(i) that the petitioner is an employee of Food, Civil Supplies and Consumer
Affairs Department Government of Jammu & Kashmir and was
promoted against the post of Sr. Assistant in the year 2012, whereafter,
he was made I/C Tehsil Supply Officer (TSO) discharging his duties in
his own pay and grade;
(ii) that during the period w.e.f. 11.05.2013 to 12.02.2014 (for total period of
9 months) petitioner remained posted as I/C Tehsil Supply Officer (TSO)
Hiranagar in terms of order No. 86 DCAPDJ of 2013 dated 11.05.2013,
whereafter, he was transferred out of Hiranagar by virtue of order No.58-
DCAPDJ of 2013 dated 13.02.2014 issued by Director of Consumer
Safaris and Public Distribution Jammu;
(iii) that the petitioner was to be considered for substantive promotion to the
post of head assistant which is equivalent to Tehsil Supply Officer
(TSO), and while the matter was been considered an FIR bearing No. 28
of 2017 dated 02.08.2017 came to be registered against him in Police
Station Vigilance Organization Jammu for commission of alleged
offences punishable under Sections 5(1)(c)(d) r/w Section 5(2) of the
Jammu and Kashmir Prevention of Corruption Act Svt 2006 r/w Sections
420, 120-B RPC;
(iv) that perusal of FIR impugned shows that the investigating agency claims
to have conducted a preliminary investigation on written complaint
lodged by one Sh. R.S. Sharma, the nature of allegations depicted in the
FIR are, (a) that one Sh. Dharam Pal Sharma is running a Kerosene Oil
Depot illegally without any permission and in connivance with the
officers/officials of CAPD Department, (b) that licence of one floor mill
bearing license No. KTH/Rice/Mill/84/59 dated 18.04.1984 in the name
of one Sh. Bishan Dass is being continuously functioning even after the
death of said Bishan Dass in the year 2007, (c) that wife of Bishan Dass
is having AAY Ration Card (Antodya Ann Yojna) which includes name
of her son Omkar Sharma in the said AAY Ration Card & (d) that the
different dealers from time to time in connivance with officials of CAPD
Department have misappropriated/black marketed the Govt. Ration ;
(v) that so far the allegation of running of a Kerosene Oil Depot by one
Dharam Pal Sharma is concerned, petitioner is not connected with the
said allegations as the license for running the said depot was issued in the
year 2000 by the then Director CAPD Department, petitioner was posted
as incharge TSO Hiranagar in the year 2013 for a period of only 9
months and therefore cannot be saddled with any criminal liability for
the license which was issued much prior to his posting in the year 2000
by the then Director;
(vi) that the allegations pertaining to renewal of license of Floor Mill in
favour of one Bishan Dass has been issued in the year 1984 under license
No. KTH/Rice/Mill/84/59 dated 18.04.1984, petitioner is not at all
connected with the issuance of said license, the said license was renewed
on 03.02.2012 and thereafter it was renewed in the year December 2015
meaning thereby that during the period w.e.f. 11.05.2013 to 12.02.2014
when petitioner was incharge TSO Hiranagar the said license was not
renewed by him therefore the allegations against the petitioner are totally
absurd and motivated by extraneous considerations;
(vii) that the next allegation levelled in the FIR is that APL/BPL/AAY lists
were prepared by Halqa Panchayat and the same were entertained by
TSO for the purpose of issuance of Ration Card without getting any
investigation from the revenue authorities which is mandatory required,
perusal of FIR shows that AAY category Ration Card was issued in the
name of Raj Kumari in the year 2011 when the petitioner was not posted
as Incharge TSO Hiranagar;
(viii) that the petitioner has not included even a single name or issued a single
new Ration Card in favour of any person after taking over as inchrge
TSO Hiranagar, all that the petitioner has done in his capacity as
Incharge TSO Hiranagar was that he replaced the old ration cards with
new ration cards as per the policy of Govt.;
(ix) that on the face of FIR, petitioner cannot saddled with any kind of
criminal liability as the FIR does not disclosed commission of any
offence against the petitioner, the connivance and criminal conspiracy of
the petitioner with Sarpanches and beneficiaries for preparing fake list of
undeserving beneficiaries under APL/BPL/AAY category does not arise
as no such list was prepared during the tenure of petitioner, petitioner has
not issued any new ration card in favour of any undeserving person like
Raj Kumari;
(x) that the petitioner has rendered unblemished service of 31 years and is
now being harassed for ulterior motives, petitioner has been arrayed as
an accused on totally irrelevant and absurd allegations, the sword of
allegations is hanging on the head of the petitioner thereby violating his
right to life and personal liberty, petitioner has already suffered
defamation and miseries as he has been denied promotion despite the fact
that he has been cleared by the Vigilance Organization for the purpose of
his promotion, that no offence is made out against the petitioner,
allegations in the FIR are totally absurd and has been malafidely
involved in FIR.
2. Respondents per contra, have filed objections/reply and have sought the
dismissal of the petition on the grounds, that it was prima-facie found that
the then TSO Hiranagar Sh. Gian Chand in connivance with the
Sarpanches, beneficiaries and others prepared fake list of undeserving
beneficiaries under the APL/BPL/AAY categories and thereafter issued the
ration cards for ulterior motives for causing wrongful loss to the state and
deprivation of benefits to the actual beneficiaries falling under such
categories. It is contended, that the investigation is still under progress and
at initial stage, the licenses are mostly renewed by senior/competent
officers on the basis of field reports submitted by field staff, the allegations
in the FIR against the petitioner are not motivated but have been
preliminary substantiated on the basis of a formal complaint received
against him upon which a proper verification was conducted by the
Vigilance Organization and the allegations were prima-facie substantiated.
It is stated, that the investigation is at it's infancy, wherein the concerned
recorded are being procured, but in the meantime the Hon'ble High Court
vide order dated 06.12.2017 has stayed the investigation, the
petitioner/accused has himself admitted that in the capacity of incharge
TSO Hiranagar he has replaced the old ration cards as per policy of the
Govt. without any verification which means that while preparing new
rations cards no verification was done.
3. Sh. Rahul Pant, Ld. Senior counsel appearing for the petitioner, in addition
to his oral arguments, has also submitted the written arguments, whereby,
while recapitulating the averments of the petition, he has sought the setting
aside/quashment of impugned FIR by canvassing arguments, that the
petitioner has remained as incharge Tehsil Supply Officer (TSO) Hiranagar
only for a period of 9 months w.e.f. 11.05.2013 till 12.02.2014, whereas,
the allegations against the petitioner regarding the running of license of
Kerosene Oil Depot illegally without any permission by one Sh. Dharam
Pal Sharma, license of one floor mill in the name of Bishan Dass, issuance
of ration card under AAY ration card category in the name of one Raj
Kumari (w/o Bishan Dass) relate back to years 2000, 1984 and 2011
respectively when the petitioner was not even posted as incharge TSO
Hiranagar, therefore, no criminal liability can be fastened with the
petitioner for the alleged offences attributed to him. It is vehemently
argued, that though the legal position is well settled that for quashing of
FIR under Section 482 of Cr.pc it is not open for the court to embark upon
any enquiry as to the reliability or genuineness of the allegations which
would amount to "mini trial", however, at least there has to be some factual
supporting material alleged in the FIR to fasten the accused with the
criminal liability, which is comprehensively lacking in the case in hand,
entitling the petitioner setting aside/quashment of FIR. To buttress his
arguments, Ld. Counsel has relied upon a judgment of Hon'ble Supreme
Court reported in 2022 LiveLaw (SC) 153 [SHAFIYA KHAN @
SHANUNTALA PRAKAPATI VERSUS STATE OF U.P. & ANR.].
4. Mrs. Monika Kohli, Ld. Sr. AAG has sought the dismissal of the petition
by strenuously articulating arguments, that petitioner/accused has been
involved in the commission of offences punishable under Sections
5(1)(c)(d) r/w Section 5(2) of the Jammu and Kashmir Prevention of
Corruption Act Svt 2006 and Sections 420, 120-B RPC on the basis of
written report lodged by the residents of Village Girnari Tehsil Hiranagar
District Kathua wherein it was alleged that (a) one Dharam Paul Sharma is
running a Kerosene Oil Depot and other Ration Depot in the said village
illegally without any permission and in connivance with the
officers/officials of the CA&PD, (b) one flour mill registered under
Licence No. KTH/Rice/Mill/84/59 dated 18.04.1984 in the name of one
Bishan Dass is being continuously renewed even after the death of Bishan
Dass, who expired in the year 2007, (c) wife of Late Bishan Dass is having
AAY ration card which include the name of his son Omkar Sharma in the
said AAY ration card and beings this the different dealers from time to time
in connivance with the officer of CA&PD department have
misappropriated/black marketed the government ration. It is argued, that
offences punishable under Sections 5(1)(c)(d) r/w Section 5(2) of the
Jammu and Kashmir Prevention of Corruption Act Svt 2006 and Sections
420, 120-B RPC have been committed by the petitioner/accused, but due to
the interim directions passed by this Court whereby the proceedings in the
impugned FIR have been stayed, the investigation is not proceeding ahead.
It is vehemently argued, that FIR can be registered merely on suspicion
based on "probabilities", it is settled law that when an investigation is yet
to start there should be no scrutiny as to what extent the allegations in FIR
are probable, reliable or genuine and the High Court cannot quash the FIR
on the ground that it did not disclose cognizable offence. Reliance has been
placed on the decision of Hon'ble Supreme Court in a case law reported in
AIR 2023 SUPREME COURT 1441[State of Chhattisgarh and another
v. Aman Kumar Singh and Ors Etc.Etc.].
5. I have heard Ld. Counsel for the parties, perused the material on record and
gone through the relevant law on the subject matter meticulously. The
powers of inherent jurisdiction under Section 482 of the Code of Criminal
Procedure can be exercised in a case, where there is clear abuse of process
of the court and when criminal proceedings are found to have been initiated
with mala-fide intention to wreck vengeance on or to cause harm to the
accused, or when the allegations are absurd or inherently improbable,
however the inherent jurisdiction powers have to be exercised sparingly by
the High Court to prevent the abuse of process of the Court or otherwise to
secure the ends of justice. Hon'ble Supreme Court of India in a case
titled "State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors" [1992 Suppl (1)
SCC 335] while dealing with the scope and powers of High Court under
Section 482 of Cr.pc to quash the criminal proceeding while succinctly
laying down certain parameters, in paragraphs 102 & 103 has held as
under:-
102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of
law enunciated by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following categories
of cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and sufficiently
channelized and inflexible guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of cases wherein such power
should be exercised:
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the
accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation by
police officers under 156 (1) of the Code except under an
order of a Magistrate within the purview of Section
155 (2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out
a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated
under Section 155 (2) of the Code.
(5) Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that there
is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge.
103. We also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very sparingly
and with circumspection and that too in the rarest of rare cases; that
the court will not be justified in embarking upon an enquiry as to
the reliability or genuineness or otherwise of the allegations made
in the FIR or the complaint and that the extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the court to act
according to its whim or caprice."
In the case of "Pepsi Foods Ltd. & Anr vs. Special Judicial Magistrate &
Ors", [(1998) 5 SCC 749] Hon'ble Supreme Court of India while
examining the extraordinary powers of High Court under Article 226 of
the Constitution of India and also the inherent powers under Section 482
of Cr.pc and relying upon the ratio decided of Bhajan Lal's case (supra)
held as under:
"22. It is settled that High Court can exercise its power of
judicial review in criminal matters. In State of Haryana and
others vs. Bhajan Lal and others 1992 Supp (1) SCC 335, this
court examined the extraordinary power under article 226 of
the Constitution and also the inherent powers under Section
482 of the Code which it said could be exercised by the High
Court either to prevent abuse of the process of any court or
otherwise to secure the ends of justice. While laying down
certain guidelines where the court will exercise jurisdiction
under these provisions, it was also stated that these guidelines
could not be inflexible or laying rigid formulae to the
followed by the facts and circumstances of each case but with
the sole purpose to prevent abuse of the process of any court
or otherwise to secure the ends of justice. One of such
guidelines is where the allegations made in the first
information report or the complaint, even if they are taken at
their face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against the
accused. Under Article 227 the power of superintendence by
the High Court is not only of administrative nature but is also
of judicial nature. This article confers vast powers on the
High Court to prevent the abuse of the process of law by the
inferior courts and to see that the stream of administration of
justice remains clean and pure, The power conferred on the
High Court under Articles 226 and 227 of the constitution
and under Section 482 of the Code have no limits but more
the power more due care and caution is to be exercised
invoking these powers."
In another case titled "State of Andhra Pradesh Vs. Gourishetty Mahesh &
Ors", [(2010) 11 SCC 226] Hon'ble Supreme Court has held, that though
the powers possessed by the High Court under Section 482 Cr.PC are
wide, however, such powers require care/caution in its exercise, the
interference must be on sound principles and the inherent power should not
be exercised to stifle a legitimate prosecution, it was clarified that if the
allegations set out in the complaint do not constitute the offence of which
cognizance has been taken by the Magistrate, it was open to the High
Court to quash the same in exercise of inherent powers under Section 482
Cr.PC.
6. Ld. Counsel for petitioner has argued with great vehemence, that petitioner
in the case in hand was incharge TSO Hiranagar for a brief period of 9
months only w.e.f. 11.05.2013 till 12.02.2014, whereas, the allegations
against him regarding running of license of Kerosene Oil Depot illegally
without any permission by one Sh. Dharam Pal Sharma, license of one
floor mill in the name of Bishan Dass, issuance of ration card under AAY
ration card category in the name of one Raj Kumari (w/o Bishan Dass)
relate back to years 2000, 1984 and 2011 respectively when he was not
even posted as incharge TSO Hiranagar, therefore, no criminal liability can
be fastened to him for the alleged offences attributed to him. It is
strenuously argued, that though the legal position is well settled that for
quashing of FIR under Section 482 of Cr.pc it is not open for the court to
embark upon any enquiry as to the reliability or genuineness of the
allegations which would amount to "mini trial", however, at least there has
to be some factual supporting material alleged in the FIR to fasten the
accused with the criminal liability which is comprehensively lacking in the
case in hand entitling the petitioner setting aside/quashment of FIR. Ld.
Counsel to buttress his arguments, has relied upon 2022 LiveLaw (SC) 153
[SHAFIYA KHAN @ SHANUNTALA PRAJAPATI VERSUS STATE
OF U.P. & ANR.].
In Shafiya Khan's case (Supra) relied by Ld. Counsel for petitioner,
Hon'ble Supreme Court in paras 19, 20 & 21 of the judgment held as
under:-
19. Although it is true that it was not open for the Court to embark
upon any enquiry as to the reliability or genuineness of the
allegations made in the FIR, but at least there has to be some factual
supporting material for what has been alleged in the FIR which is
completely missing in the present case and documentary evidence on
record clearly supports that her Nikah Nama was duly registered and
issued by competent authority and even the charge sheet filed against
her does not prima facie discloses how the marriage certificate was
forged.
20. In the given circumstances and going through the complaint on
the basis of which FIR was registered and other material placed on
record, we are of the considered view that no offence of any kind as
has been alleged in the FIR, has been made out against the appellant
and if we allow the 7 criminal proceedings to continue, it will be
nothing but a clear abuse of the process of law and will be a mental
trauma to the appellant which has been completely overlooked by the
High Court while dismissing the petition filed at her instance under
Section 482 Cr.PC.
21. Consequently, the appeal is allowed. The criminal proceedings
initiated against the appellant in reference to FIR No.0227 of 2019
dated 9th July, 2019 under Sections 494, 495, 416, 420, 504 & 506
IPC lodged at PS Bazar Khala, District Lucknow, U.P. are hereby
quashed and set aside.
Ratios of the Judgments of "Ch. Bhajan Lal‟s" case, "Pepsi Foods‟s
Ltd" case, "Gourishetty Mahesh‟s" case (Supra) and the one of
"Shafiya Khan‟s" case (Supra) relied by Ld. Counsel for petitioner
Hon'ble Supreme Court has culled out the parameters/guidelines for
quashing FIR u/s 482 Cr.pc to the effect, that it is not open for the High
Court to embark upon any enquiry regarding the reliability or
genuineness of the allegations made in FIR however, at least there has to
be some factual supporting material for what has been alleged in the FIR.
Ratios of the judgments (Supra) squarely apply to the facts of the case in
hand, wherein, the allegations against petitioner relate back to the years
2000, 1984 & 2011, whereas, during the said periods the petitioner was
not posted as incharge Tehsil Supply Officer (TSO) Hiranagar as the
petitioner remained posted as Incharge TSO Hiranagar for 9 months
w.e.f. 11.05.2013 to 12.02.2014. Even from the perusal of contents of
FIR factual supporting material in the FIR to fasten the petitioner with
criminal liability is comprehensively lacking, therefore, the petition
deserves its setting aside/quashment.
7. Ld. Counsel for respondent while relying upon the judgment of Hon'ble
Supreme Court reported in AIR 2023 SUPREME COURT 1441[State of
Chhattisgarh and another v. Aman Kumar Singh and Ors Etc.Etc]
has forcefully articulated arguments, that the FIR can be registered merely
on suspicion based on "probabilities" and it is settled law that when an
investigation is yet to start there should be no scrutiny as to what extent
the allegations in FIR are probable, reliable or genuine. Relying upon the
law laid down in the judgment (Supra), Ld. Counsel has urged, that the
offences punishable under Sections 5(1)(c)(d) r/w Section 5(2) of the
Jammu and Kashmir Prevention of Corruption Act Svt 2006 r/w Sections
420, 120-B RPC have been committed by the petitioner in the case in
hand, therefore, as the investigation is yet to start, there should be no
scrutiny in regard to the allegations in the FIR whether the allegations are
probable, reliable or genuine. I have scanned the judgment of Aman
Kumar Singh's case (Supra) relied by Ld. Counsel for respondent,
wherein Hon'ble Supreme Court while reversing/setting aside the
decision/order of the High Court of Chhattisgarh quashing the FIR against
accused had held, that there were allegations against the accused to have
amassed disproportionate assets of more than ₹ 2500 Crores contrary to
his legal source of income and the investigation was yet to start and
cognizable offence was disclosed against accused. Ratio of the judgment
(Supra) relied by Ld. Counsel for respondent is distinguishable and
inapplicable to the facts of the case in hand. In the case in hand, there is
no factual supporting material alleged in FIR which could disclose the
commission of cognizable offence against petitioner for the period of
11.05.2013 to 12.02.2014 he remained posted as Incharge TSO Hiranagar,
whereas, the allegations relate back to the years 2000,1984 & 2011when
the petitioner was not even posted as Incharge TSO Hiranagar. Moreso,
there are no allegations of corruption/amassing of money by the petitioner
from the complainant or any other person. The allegations made in the
FIR against the petitioner sans any material, if taken at their face value
and accepted in their entirety, do not prima facie constitute any offence or
make out a case against the petitioner/accused, as the allegations are so
absurd and inherently improbable on the basis of which no prudent person
can ever reach a just conclusion that there is sufficient ground for
proceeding against the petitioner/accused. Therefore, petitioner/accused in
the case in hand cannot be saddled with criminal liability for the periods
for which he was not posted as TSO Hiranagar.
8. For the foregoing reasons and discussion, I feel myself persuaded to allow
the petition. Resultantly, impugned FIR No. 28/2017 registered at Police
Station Vigilance Organization Jammu for the commission of offences
punishable under Sections 5(1)(c)(d) r/w Section 5(2) of the Jammu and
Kashmir Prevention of Corruption Act Svt 2006 r/w Sections 420, 120-B
RPC qua the petitioner stands quashed.
9. Disposed of accordingly.
(MOHAN LAL)
JUDGE
JAMMU
19.08.2023
Vijay Whether the order is speaking: Yes
Whether the order is reportable: Yes
