Mohd.Ramzan Bhat vs State and others

The petitioner claiming to be a 1st Class Gazetted Officer of Government and involved in FIR No. 117 of Police Station Kupwara registered

under Sections 409,109,420 RFC read with Section 5(2) of Prevention of Corruption Act, apprehends his arrest in the case and seeks

anticipatory bail on the ground that not being involved in any of the aforesaid offences and having already been subjected to custodial interrogation

he deserves bail in anticipation of his rearrest, particularly because if arrested, his career and reputation would suffer. During course of arguments

his counsel besides reiterating the aforesaid ground has also contended that Kupwara Police had no competence and jurisdiction to register the

case and conduct investigations, because after addition of Section 5(2) of the Prevention of Corruption Act in the catalogue of offences the matter

squarely landed within the province of Vigilance Organisation which alone could conduct investigations and as such registration of case and

conduct of investigation by Kupwara police Vas illegal, etc.

I have heard Ld. Counsel gone through records and considered the matter. The story appears to have started with institution of a report before

Deputy Commissioner Kupwara that during year 20042005 the present petitioner while posted as District Panchayat officer Kupwara, concerned

with some other official and non official persons conducted fraud in purchase of commods required to be installed in latrines constructed officially

and thereby misappropriated funds to the tune of thirty two lac rupees, which was endoresed by him to concerned S.P. who marked it to the

Police Station where upon the aforesaid case was registered. During course of investigation it transpired that under Central Rural programme

latrines where proposed to be constructed in compounds of selected person living below the poverty line, Schools and Anganwari Centres, for

which cement commodes were to be purchased from local self help groups. Pursuant to said scheme an action plan was drafted by the office of

Deputy Commissioner Kupwara and issued vide order No. 629/DDK, dated 1.2.2005. According to the guidelines the locally supplied

commodes etc were to be certified by the Engineering Wing of Rural Development department as technically and financially viable. The petitioner

as District Panchayat officer Kupwara released seven lac rupees in favour of two self help groups namely Chinar Self help group and Kakrusu Self

help group which were being run by certain locals including some ladies for supply of cement commodes none of whom had their services/means

or infrastructure to manufacture cement commodes. Under order No. DPO (K) 159096 dated 11.3.2005 petitioner deputed aforesaid Self help

groups for training in manufacture of sanitary ware to District Panchayat officer Pulwama, but despite that they were not able to

manufacture/supply the cement commodes and the petitioner asked them to supply China Ware Commods in total violation of the guidelines

prescribed under the scheme. Simultaneously, an amount of Rs. 6187500/ and Rs. 700000/ was also released in favour of aforesaid Self help

groups who with petitioner's connivance purchased the China Ware Commods from Khaja Hardware Kupwara at the price of Rs. 145 and Rs.

130/ per piece and Ptraps at Rs. 40/ per piece and supplied the same to the department @ Rs. 280/ and Rs.,40/ per piece respectively, and thus

defrauded the Government. This was done despite written information of concerned Block Development Officers that none of the aforesaid Self

help groups was manufacturing the aforesaid items nor had they any infrastructure for the same. After all this came to light the concerned police

added offence under Section 5(2) of Prevention of Corruption Act to the case and came to the tentative conclusion that petitioner connived with

the aforesaid groups to cheat the State exchequer to the tune of lacs with active assistance of one Mohd. Munwar Lone Accountant, who was

arrested and the petitioner apprehending his arrest too filed an application for Anticipatory bail before Special Judge Anti Corruption Sringar on

1st July, the date when the aforesaid Mohd. Munawar Lone was arrested, which was dismissed vide order dated 10th of August 2005, with an

observation that in view of records the petitioner appeared to be involved in the alleged offences and his custodial interrogation was necessary for

effective investigation. Whereafter he instituted the present petition on aforesaid grounds.

Before considering contentions of petitioners counsel regarding other aspects of the matter, it would be appropriate to address his argument that

regular Police was not competent to register the case and investigate the matter, because of the bar created under Section'3 of the Prevention of

Corruption Act. On face of it the contention appears to be misplaced in view of the very provision itself which is reproduced herein below:

Certain offences to be cognizable. An offence punishable under Section 5 of this Act or under Section 161 or Section 165 or Section 165A or

Section 167A of the State Ranbir Penal Code Samvat 1989, shall be deemed to be a cognizable offence for the purpose of the Code of Criminal

Procedure. Samvat 1989 notwithstanding anything to the contrary contained therein:

Provided that no Police Officer below the rank of the ( x x x ) Deputy Superintendent of Police shall investigate any such offence without the order

of a Magistrate of the first class or make any arrest therefore without a warrant.

Provided further that if an Officer of the Vigilance Organisation of and above the rank of a Sub Inspector of Police is specially authorised in writing

by an officer of the Vigilance Organisation net below the rank of an Assistant Superintendent of Police to investigate such offence, such officer may

investigate the offence so specified in the order of authorisation. But such officer shall not be competent to arrest any person during such

investigation, unless a Police Officer not below the rank of a Deputy Superintendent of police authorises such arrest under section 56 of the Code

of Criminal Procedure, Samvat 1989.

Perusal of the Section reveals that it does not contain an> thing prohibiting registration of cases under Prevention of Corruption Act or their

investigation by the regular Police or to provide for their registration and investigation only by Vigilance Organisation. All that it lays down is that

offences under Section 5 of the Act and the Sections 161,165,165A and Section 161 A of RPC shall be cognizable for purposes of code of

Criminal Procedure and that no. Police Officer below the rank of DSP shall investigate any such offence without Magistrate's order, which by

implication means that DSP's and officer above them can so investigate the offences even without Magisterial Orders. Another part of the provision

is reflected by second proviso which prohibits arrest of any person, by any officer below the rank of Sub Inspector authorised to conduct

investigations, without permission of his higher officer not being below the rank of a DSP. Thus the said provision does not contain anything to

support the petitioners contention to the contrary which accordingly has got to brushed aside.

In so far as other aspects of the matter are concerned in view of the enormity of transaction that has been unearthed by the police after

investigation, any person involved therein cannot perhaps claim innocence nor can any such claim be heared, once the doubting finger exfacie

points towards him. In given circumstances as revealed by the police report above mentioned the petitioner as Controlling Officer of the whole

programme under whose signatures the money was being drawn and disbursed cannot easily escape responsibility for whatever wrongful payments

have been made in relation to implementation of the scheme, and claim innocence or be innocently heard to make such a claim. In view of his

allegedly neck deep involvement therefore his custodial interrogation appears to be necessary for detection of whole fraud and the level of

involvement of the other persons constituting the so called self help groups who are shown have been helping themselves through convert

transactions.

Law is well settled that anticipatory bail provision is only meant to protect those who genuinely apprehend false involvement in Criminal cases at

the heads of influential adversaries or unscrupulous elements. Apparent perpetuators of frauds, fakery and falsehood cannot take reguge

thereunder to hide themselves from the systemic scanners and avoid accountability on the pretext of their self proclaimed innocence, particularly in

the cases involving official corruption, frauds on public exchequer and violation of the public trust, and in that view of the matter the petitioners

prayer for bail in anticipation of his arrest must fall flat.

Before parting, it would be appropriate to observe, that as per police report on the file the matter has more than one dimensions. In addition to

indicating commission of fraud in implementation of the scheme under which the aforesaid programs was undertaken, it also suggest existence of

the fake self help units as the two involved in the instant case who plunge into looting the exchequer at every available opportunity. This

phenomenon may not be strictly localized only, but can be existent elsewhere also, and requires to be looked into on a comparatively broader level

for being investigated more effectively. For that purpose it would be advisable that the matter is entrusted to the State Vigilance Organisation for

being looked into in its fullness.

Accordingly while dismissing the petition in hand, it is directed that the case be transferred to State Vigilance Organization for thorough

investigation. Matter stands accordingly disposed of.