Ravi Kumar @APPELLANT@Hash State Of Jammu & Kashmir

In this petition filed under section 561-A Cr. P.C., the petitioner has sought the indulgence of this court in quashing the FIR bearing no. 21/2017

registered against him at Police Station Vigilance Organisation, Jammu, for the commission of an offence under section 5(1) (d) read with section 5

(2) J&K Prevention of Corruption Act and section 120-B RPC, on the grounds, inter alia, that he was appointed as a Junior Assistant/Typist in the

department of Urban Local Bodies in the year 1982. Subsequent to his appointment, he was promoted to the different rungs of the official hierarchy in

the department. He served as Executive officer in the Urban Local Bodies till 30.06.2015. He has a long service career and has enjoyed a good

reputation by the dint of hard work. The FIR registered against him is actuated by mala fides and the allegations levelled in it are factually incorrect.

These do not make any offence against him on the face of them.Â

The FIR portrays and delineates that a verification was conducted into the allegations levelled against Shri Dheeraj Gupta and Neeraj Gupta sons of

Shri Rattan Bushan residents of ward no. 2 near Ramleela Ground, Adarsh Colony, Udhampur, that they raised a construction in violation of the

building permission/sanctioned plan. The verification revealed that a residential building permission was issued vide order no. MCU/2011-12/1202

dated 28.09.2011 by then Executive Officer, Municipal Council, Udhampur in favour of Shri Dheeraj Gupta and Neeraj Gupta sons of Shri Rattan

Bushan with permission to cover 3189.5 square feet at the ground floor and 2582 square feet at the first floor but in spite of that the beneficiaries have

covered 95% of the plot area as per the site plan. The verification further revealed that the beneficiaries in league with the accused officer/officials of

Municipal Council, Udhampur and in utter violation of the approved plan raised the construction on ground floor measuring 2114 square feet and at the

first floor measuring 2721.5 square feet and thus committed a total violation of 4835.5 square feet. It is stated that it revealed that in order to cover up

the violations and to provide sufficient time to the beneficiaries to raise the said construction a mere formality of issuing a notice under section 7(1)

was undertaken but no action as warranted under section 7(3) of Municipal Act was initiated. Thus, the intentional inaction by the accused public

servant in league with the beneficiaries has paved the way for the beneficiaries to raise the construction in blatant disregard and violation of building

permission rules/law. The aforementioned acts of omissions and commission on the part of Shri Ravi Kumar, then Executive Officer, Municipal

Council, Udhampur and the beneficiaries namely, Shri Dheeraj Gupta and Neeraj Gupta sons of Shri Rattan Bushan resident of ward no. 2, near

Ramleela Ground, Adarsh Colony, Udhampur, prima facie establish an offence under section 5(1)(d) read with section 5(2) J&K Prevention of

Corruption Act, 2006, and section 120-B RPC.Â

In the objections, the respondent has pleaded that a complaint was lodged in the Chief Minister’s Office which was forwarded to the Vigilance

Organisation, Jammu. The contents of the complaint were verified and on verification it emerged that Shri Dheeraj Gupta and Neeraj Gupta sons of

Shri Rattan Bushan resident of ward no. 2, near Ramleela Ground, Adarsh Colony, Udhampur, raised a construction in violation of the building

permission/sanctioned plan. It also came to the surface that the aforesaid building permission was issued in their favour by the then Executive Officer,

Municipal Council Udhampur. It also came to the fore during the verification that the beneficiaries in league with the officials of Municipal Council,

Udhampur, have in utter violation of the building permission plan raised the above mentioned construction.Â

Heard and considered.

The complaint lodged by one Sunil Kumar forms the bedrock of the registration of the FIR against the petitioner, and it is attached to the petition

as annexure-C. It states that the beneficiaries Shri Dheeraj Gupta and Neeraj Gupta sons of Shri Rattan Bushan, started the construction of the

building in January 2015 much after the expiry of the period during which the building permission/sanctioned plan would remain in force. The petitioner

was not posted at Udhampur at the relevant point of time inasmuch as by government order no. 06HUD of 2013 dated 09.01.2013, the petitioner,

incharge Executive Officer, Municipal Council, Udhampur, was transferred and posted as incharge Executive Officer, Municipal Committee, Katra

and as per the order he was directed to continue to hold the additional charge of incharge Executive Officer, Municipal Council, Udhampur, till further

orders. Government order no. 146-HUD of 2013 dated 08.04.2013, directed that in the interest of administration, Shri Rattan Lal, incharge Executive

Officer, Reasi, will look after the work of Municipal Council Udhampur, relieving the petitioner of the additional charge. It was further stipulated in the

order that the petitioner, Executive Officer, Municipal Council, Katra, will now look after the work of Municipal Council, Reasi, in addition to his own

duties till further orders. By another Government order bearing no. DULBJ/2014/4360 dated 09.07.2014, it was directed that in the interest of

administration and approval conveyed by the administrative department, Shri Ravi Kumar, the petitioner, incharge Executive Officer, Municipal

Committee, Katra is posted as incharge Executive Officer, Municipal Committee, Reasi. By another order bearing no. DULBJ/2014/4462-64 dated

11.7.2014, the petitioner was directed to report in the Directorate of Urban Local Bodies, Jammu with immediate effect till further orders. These

facts are not disputed. The communication dated 7.2.2015 and the service book of the petitioner also reveal so. On the face of the communications

and orders cited above what can be deduced is that the petitioner was not functioning as Executive Officer, Municipal Council, Udhampur, in the

month of January, 2015 when the construction is alleged to have been raised by the beneficiaries. The petitioner had no occasion to issue the notice

under section 7(1) and section 7(3) of J&K Control of Building Operations Act 1988, when he was not posted at Udhampur at the relevant point of

time. In case titled Harshendra Kumar D Rebatilata Koley etc 2011(3) SCC 351, the Supreme Court held that

“in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon

by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked

into by the High Court in exercise of its jurisdiction underSection 482or for that matter in exercise of revisional jurisdiction underSection 397of the

Code. It is fairly settled now that while exercising inherent jurisdiction underSection482or revisional jurisdiction underSection 397of the Code in a case

where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in

respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed

by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his

defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the

materials which have significant bearing on the matter at prima facie stage.â€​

In case titled Ajay Mitra V/s State of M.P. and others 2003 (3) SCC 11, the question which arose was that where the complaint or FIR does not

disclose commission of a cognizable offence, whether the same can be quashed at the initial stage, and it was held that, “the First Information

Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or

constitute the starting point of a lawful investigation. It is surely not within the province of the police to investigate into a report (FIR) which does not

disclose the commission of a cognizable offence and theCodedoes not impose upon them the duty of inquiry in such cases.â€​

The law is that Section 561-A Cr. PC envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give an

effect to an order under the code (ii) to prevent abuse of process of Court and (iii) to otherwise secure the ends of justice. It is neither possible nor

desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can

provide for all cases that may possibly arise. Courts, therefore, have the inherent powers apart from express provisions of law which are necessary

for proper discharge of functions and duties imposed upon them by law. Courts are invested with all such powers as are necessary to do right and to

undo a wrong in the course of administration of justice on the principle of Quando lex aliquid alicui concedit, conceditur et id Sine quo res ipsa esse non

protest (When the law gives the person anything, it gives him that without which it cannot exist).

In the law laid down by the Supreme Court in the case of State of Haryana and others v. Bhajan Lal and others, reported in 1992 Supp (1) SCC

335, the Supreme Court has elaborately considered the scope of Section 482 Cr. P.C. In this case the Supreme Court had the occasion to determine

the power of the High Court to quash the entire criminal proceeding including the FIR. The case under scrutiny arose out of an FIR registered

under Sections 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. After noticing the earlier pronouncements on the subject,

the Supreme Court detailed with lace certain categories of cases by way of illustration where power under Section 482 of the Cr. P.C. can be

exercised to prevent the abuse of the process of the Court or secure the ends of justice. Paragraph 102 of the judgment provides seven categories

of cases where the provisions of Section 482 Cr. P.C. can be invoked and these are extracted below:

“i) 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. Â

ii) 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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section

155(2) of the Code. Â

iii) 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. Â

iv) 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 any order of a Magistrate as contemplated under Section 155(2) of the Code. Â

v) 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. Â

vi) 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.  vii) 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.â€​

Testing the instant case on the standards of the guidelines laid down and evolved above, which are illustrative and not exhaustive, what requires to

be looked into is whether the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do prima facie

constitute any offence or make out a case against the petitioner. This case falls within the purview and the under the category of cases where the FIR

does not disclose any offence even as the allegations contained in it are taken to be true at their face value, for the simple reason that the petitioner

was not posted at Udhampur when the construction commenced.Â

Viewed in the above context, the FIR bearing no. 21/2017 registered against the petitioner at Police Station Vigilance Organisation, Jammu, for the

commission of an offence under section 5(1) (d) read with section 5 (2) J&K Prevention of Corruption Act and section 120B RPC and all other

proceedings therefrom are liable to be quashed and are accordingly quashed.