ASGAR ALI vs STATE OF JAMMU & KASHMIR AND ANOTHER

In this petition filed under Section 561-A Cr.P.C read with Article 226 of the Constitution of India and Section 103 of the Jammu and Kashmir, the

petitioner beseeches that FIR No.9 of the year 1986 registered by the Vigilance Organization, Jammu through its Senior Superintendent of Police and

all the proceedings emanating therefrom be quashed.Â

The facts under the shade and cover of which the petitioner has sought the aforesaid relief are that one Abdul Majid S/o Abdul Aziz R/o Chak

Mohd. Yar Tehsil R.S.Pura, Jammu filed an application under Section 8 of the Evacuees’ (Administration of Property) Act, 2006, (for brevity

known as “The Actâ€) on 20.02.1981 before the then Tehsildar (Assistant Custodian), Jammu namely, Mohd. Aslam, seeking restoration of the

land situate at village Deeli, Tehsil Jammu, comprising Survey Nos.285, 286/1, 287 and 372 measuring 47 Kanals 14 Marlas and under KhasraNo.283,

284, 286/2 and 373 measuring 47 Kanals 4 Marlas belonging to one Allah Ditta S/o Noor Mohd and KaramIllahi S/o Fazal Din, on the ground that he is

their sole heir. Since the application was filed after a period of 35 years approximately from the date, the evacuees had left the place, therefore, the

Assistant Custodian made an endorsement on the said application to that effect. However, the then Custodian proceeded ahead in the said application

and issued a notice inviting objections from the general public which was published in a newspaper and, thereafter, the Court recorded the statements

of the witnesses produced by the applicant in support of his application seeking restoration of the land. The said application came to be dismissed for

non-prosecution and was consigned to records. Subsequently, the same was restored to its original number by the then Custodian namely Meharban

Singh posted as Tehsildar, Agrarian Reforms, Jammu, at that moment. In the year 1983, the petitioner came to be posted as Tehsildar (Assistant

Custodian) Jammu, and the said application was ripe for final determination at that juncture. The petitioner decided the said application vide order

dated 25.11.1983 which directed that the land be restored in favour of the applicant namely, Abdul Majid, inasmuch as no one else had opposed the

said application or laid any claim over the said property. The petitioner passed the said order on the basis of the material available on the record.

However, the Police authorities of Police Station Vigilance Organization, Jammu registered an FIR bearing No.9 of the year 1986 for the commission

of an offence under Section 5(1)(d) of the Prevention of Corruption Act alleging therein that the petitioner had hatched a criminal conspiracy with the

applicant namely, Abdul Majid, despite the fact that at a time when the application under Section 8 was filed, the petitioner was posted at Poonch and

not in Jammu. The FIR was registered against the petitioner, the then Assistant Custodian- Mohd. Aslam Qureshi and the applicant namely, Abdul

Majid. It is further contended that the order passed by the petitioner in the application of Abdul Majid was challenged by one Siraj-ud-Din before the

Custodian General, J&K Government in a revision petition and during the pendency of the revision petition, the petitioner Siraj-ud-Din died and his

daughter, namely, Sharifa Bibi was brought on record as his legal heir. However, fate had it for her that she too 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. Abdul Majid preferred a revision before the Special Tribunal, Jammu in which he challenged the vires of the order dated 23.04.2008 of

the Custodian General and the Special Tribunal Jammu stayed the operation of the order passed by the Custodian General. The petitioner has

proceeded to state that the respondent No.2 contemplates to produce the challan against the petitioner and Abdul Majid as well and Mohd. Aslam has

been dropped from the list of the accused.Â

Aggrieved by the registration of FIR bearing No. 9/1986 and the investigation carried in the said FIR, the petitioner has assailed the same inter alia

on the grounds that under Section 29 of the Act while holding any inquiry, the Custodian shall have the same powers as are vested in a Court under

the Code of Civil Procedure, 1977 (Act X of 1977), when trying a suit in respect of the following matters, namely :-

(a) enforcing the attendance of any person and examining him on oath;

(b) compelling the discovery and production of documents;

(c) any prescribed matter;

and the inquiry by the Custodian shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 Ranbir Penal Code (Act XII

of 1989), and the Custodian shall be deemed to be a Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1989 (Act

XXIII of 1989).

From the aforesaid statutory provision contained under Section 29 of Evacuees’ (Administration of Property), Act, 2006, it is evident that the

petitioner, while deciding an application under Section 8 of the Act, passed the Order dated 25.11.1983 in the capacity of a judicial authority on the

basis of the material on record and therefore, the provisions of Section 5(1) (d) of prevention of Corruption Act are not attracted in the case.

It is further contended that any error in the order dated 25.11.1983 could be rectified and remedied by challenging its validity before a higher forum

which has been exhausted by the aggrieved persons and therefore, there is no question of attributing any motives to the petitioner and to register the

FIR for the commission of offence under Section 5(1)(d) of Prevention of Corruption Act as against him. The FIR registered against the petitioner is a

sheer abuse of the process of law, in as much as there is no allegation in the FIR that the petitioner indulged in corrupt practices or resorted to illegal

means or that he abused his official position for obtaining any pecuniary gains for himself or for any other person. It is stated that from a bare perusal

of the FIR, no offence much less an offence under Section 5(1)(d) of the Prevention of Corruption Act is made out against the petitioner and,

therefore, the impugned FIR and any investigation carried pursuant thereto is required to be quashed.Â

Heard and considered.

Section 29 of the Evacuees’ (Administration of Property) Act, 2006 makes it abundantly clear that the Custodian while holding an inquiry 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. 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.

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 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.Â

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 muchless 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 therefrom are quashed.

Petition under Section 561-A Cr.PC No. 15/2009 stands disposed of accordingly.Â

Petition under Section 561-A Cr.PC No.174/2016 and Cr. Rev. No. 13/2017 be segregated and listed in due course.