State of J&K vs J.S. Modi

Bansi Lal Bhat, J. - This LPA is directed against the judgment dated 16.02.2005 passed by learned Single judge by virtue whereof OWP

No. 1055/1998, titled ""J.S. Modi v. State & Ors."" was allowed and FIR No. 34/1997, registered at Police Station Vigilance Organization

Jammu against the respondent, order of sanction for prosecution dated 05.05.1998 and charge-sheet filed as a sequel to the investigation in the

aforesaid FIR pending determination before learned Special Judge, Anti-corruption, Jammu were quashed by a Writ of Certiorari. The impugned

judgment has been assailed primarily on the ground that exoneration of respondent by commission of inquiry could not act as a bar to continuation

of criminal proceedings against respondent and that the sanction for prosecution of respondent and others was accorded upon due application of

mind and same could not be subjected to scrutiny on questions of fact.

Facts leading to prosecution of respondent and others for offence under Section 5 (2) of J&K Prevention of Corruption Act, 2006 read with

Sections 409, 419, 420, 467, 468, 471, 477-A, 201 and 120-B of RPC are required to be briefly noticed. Respondent-J.S. Modi, while

functioning as Deputy Commissioner-Excise Jammu conducted auction for allotment of country liquor vends. It happened in March, 1995.

Respondent was heading the Committee appointed for conducting auction for allotment of country liquor vends under supervision of Excise

Commissioner. Formal orders of allotment were issued in favour of M/s. Kuldeep Singh & Ors. who emerged as the highest successful bidder in

the open auction conducted for year 1995-96. The allottees were required to deposit the instalments either in the bank or Government Treasuries.

After compliance, country liquor permits were issued in their favour by the respondent. On scrutiny of the files of contractors, some doubtful

treasury vouchers and bank receipts were detected by the respondent which were sent for verification. The respondent claimed to have apprised

the Excise Commissioner and ACS (Finance) of the situation. As per verification reports received from Saddar Treasury, Jammu and J&K Bank

Branch Gobindsar Kathua, tampering and forgery was detected in the treasury vouchers and bank receipts. Huge variations were found in four

receipts out of 61 cash receipts referred for verification. Treasury officer in his verification report stated that Kuldeep Singh had defrauded

Government revenue by an amount of Rs. 50.00 lacs by act of forgery and cheating in respect of treasury receipts of Saddar Treasury Jammu. The

respondent, having thus found that the contractor had cheated the Government for an amount of Rs. 97,50,000/- (Rupees Ninety Seven Lacs and

Fifty Thousand) by forgery causing loss to exchequer by acting fraudulently and dishonestly, lodged a written complaint in pursuance of decision

jointly taken with Additional Chief Secretary (Finance) and Excise Commissioner. The report was lodged with Crime Branch Jammu on

05.04.1996 which led to registration of case under FIR No. 8 of 1996. It was during the course of investigation that the accused deposited an

amount of Rs. 90.00 lacs. Investigation ensued and culminated in filing of charge-sheet against the accused persons named therein. During the

pendency of Challan before learned Special Judge Anti Corruption Jammu, one of the accused levelled serious allegations against the respondent.

Based thereon the trial Court directed VOJ to inquire into the matter and submit report. The exercise finally led to registration of case under FIR

No. 34/1997, against the respondent. Investigation ensued and culminated in filing of charge-sheet against the respondent. Respondent strongly

objected to the course being adopted in launching prosecution against him despite his claim that he was instrumental in detecting the fraud

committed by the contractor and setting the machinery in motion. Respondent assailed the sanction accorded for his prosecution in case registered

under FIR No. 34/1997, pleading that the same was obtained on the basis of a tainted investigation and the proceedings in launching prosecution

before the trial Court amounted to abuse of process of Court which were liable to be quashed. Respondent also banked upon an inquiry report. It

was contended that the report of commission of inquiry appointed by the Government clearly established that the respondent had detected the

fraud committed by the contractor and brought it to the notice of Additional Chief Secretary, Finance and Excise Commissioner which led to

lodging of FIR No. 8/1996, with Crime Branch. It was further contended that an amount of Rs. 90.00 lacs was recovered from the contractor

during investigation of aforesaid case registered at the instance of respondent. It was contended that since the findings of the commission of inquiry

had been accepted by the Government and petitioner was reinstated in terms of order dated 06.06.1997 and subsequently came to be promoted

to selection grade of KAS, the investigation in FIR No. 34/1997, was without jurisdiction and the sanctioning authority had failed to apply its mind

while according sanction for prosecution of respondent.

Appellant filed reply before the writ Court pleading that FIR No. 34/1997, had been registered by VOJ under directions of the Court. It was

further pleaded that the respondent could not claim absolvement merely because he had initially filed FIR No. 8/1996, against the contractor. It

was lastly pleaded that the respondent himself was involved in conspiracy with other accused and had committed fraud in duping the Government

of crores of rupees. The order of sanction for prosecution was based on proper application of mind and the writ petition deserved to be dismissed.

On consideration of the matter, the writ Court was of the view that the prosecution against respondent was launched without any valid sanction and

the cognizance taken by Special Judge was completely without jurisdiction. In view of the same, it quashed FIR No. 34 of 1997, of Police Station

VOJ registered against the respondent as also the order of sanction for his prosecution dated 05.05.1998 and the charge-sheet pending before the

trial Court.

The impugned judgment has been assailed on the ground that it did not fall within the province of writ Court to address disputed questions of

fact. The impugned judgment is further assailed on the ground that there was no bar to launching and continuance of criminal proceedings against

the respondent notwithstanding his exoneration by the commission of inquiry. It is also contended that the writ Court could not have come to

conclusion that the impugned order according sanction for prosecution of respondent was not based on application of mind as the factum of such

sanction being based on consideration of relevant material and upon proper application of mind was to be established at the trial.

Heard learned counsel for the parties and perused the record.

While learned counsel for appellant has reiterated the arguments forming grounds of appeal, learned counsel for respondent has taken serious

exception to the maintainability of LPA contending that the petition filed before the writ Court was virtually a petition seeking to invoke inherent

and supervisory jurisdiction of High Court though the same was erroneously styled as a writ petition under Article 226 of Constitution of India read

with Section 103 of Constitution of Jammu and Kashmir. It is further contended that the respondent was instrumental in detecting the fraud

committed by the contractor and instead of appreciating his work, he was subjected to humiliation and harassment by seeking to put him on trial on

the basis of impugned sanction for prosecution accorded without application of mind.

We have given out thoughtful consideration to the arguments advanced at the Bar. It is not in controversy that the respondent had been

instrumental in detecting the fraud, reporting it to the Excise Commissioner and in consultation with him taking appropriate measures by filing FIR

No. 8/1996, with Crime Branch Jammu to bring the unscrupulous contractor indulging in tampering and fraud to book. It is also not disputed that

the commission of inquiry appointed to probe the role of respondent in the wake of allegations levelled by one of the accused in the aforesaid case

had exonerated the respondent. Therefore, the sanctioning authority could not have shut its eyes these material facts emerging from the relevant

documents. The effect of according of sanction to prosecution of accused would relegate respondent to the position of a collaborator in crime in

case registered under FIR No. 8/1996, thereby upsetting and nullifying the prosecution launched in aforesaid case. The effect of

informant/complainant being branded as a collaborator/conspirator with the persons arraigned as accused in FIR No. 8/1996, would be disastrous

and have perilous consequences. The mechanical approach in according sanction for prosecution of respondent in circumstances leading to

registration of case under FIR No. 8/1996, with Crime Branch at the instance of respondent stares at the face of sanctioning authority as the report

of commission of inquiry had exonerated the respondent of the same charges as formed the subject matter of prosecution in case registered under

FIR No. 34/1997, which was followed by his promotion. Viewed thus, petition of respondent before the writ Court would appropriately be

construed as a petition under Article 227 of Constitution of India corresponding to Section 104 of Constitution of Jammu and Kashmir and Section

561-A of Criminal Procedure Code notwithstanding the fact that the relief claimed in the petition did partake of remedy in the nature of Writ of

Certiorari. Respondent approached the writ Court at a time when charge-sheet, as a sequel to investigation in case registered under FIR No.

34/1997 of VO J was pending determination before the Court of learned Special Judge which was in seisin of the case. The import of provisions

embodied in Article 226 and 227 of Constitution of India has been considered by Hon'ble Apex Court from time to time. The latest

pronouncement of law on the subject is summed up in Radhey Shyam v. Chhabi Nath reported in AIR 2015 SC 3269 as under:

Accordingly, we answer the question referred as follows:

(i) Judicial orders of Civil Court are not amenable to writ jurisdiction under Article 226 of the Constitution;

(ii) Jurisdiction under Article 227 is distinct from jurisdiction under Article 226. Contrary view in Surya Dev Rai is over ruled.

In ""Shri Jogendrasinhji Vijaysinghji v. State of Gujarat & Ors."" reported in AIR 2015 SC 3623, the Hon'ble Apex Court was of the view

that it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing LPA appeal to

discern and decide whether the order has been passed by the Single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution

or both. The Division Bench would be required to scrutinize whether the facts of the case justify the assertions made in the petition to invoke the

jurisdiction under both the articles and the relief prayed on that foundation. It summarised the conclusions as follows:

In view of the aforesaid analysis, we proceed to summarise our conclusions as follows

(A) Whether a Letters Patent Appeal would lie against the order passed by the learned single Judge that has travelled to him from the other

tribunals or authorities, would depend upon many a facet. The court-fee payable on a petition to make it under Article 226 or Article 227 or both,

would depend upon the Rules framed by the High Court.

(B) The order passed by the civil court is only amenable to be scrutinised by the High Court in exercise of jurisdiction under Article 227 of the

Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can

be issued against the order passed by the civil court and, therefore, no Letters Patent Appeal would be maintainable.

(C) The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed

as a party, as it is a necessary party.

(D) Tribunal being or not being party in a writ petition is not determinative of the maintainability of a Letters Patent Appeal.

The Hon'ble Apex Court had the occasion to deal with the scope of powers and exercise of jurisdiction under Article 227 of the Constitution of

India and Section 482 Cr.P.C. (corresponding to Section 561-A of Jammu and Kashmir Cr.P.C.) in ""AG v. Shiv Kumar Yadav"" reported in

AIR 2015 Supreme Court 3501. Reiterating the view taken in an earlier judgment titled ""Jasbir Singh v. State of Punjab"" reported in (2006)

8 SCC 294, it observed:

It will also be pertinent to mention that power of judicial superintendence under Article 227 of the constitution and under Section 482,

Cr.P.C. has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court.

The Hon'ble Apex Court was of the view that if any judicial order was sought to be assailed on the ground of inconsistency with any

fundamental right, the appropriate remedy to challenge such order would be an appeal or revision as may be provided by law. It is by now well

settled that Writ of Certiorari does not lie to quash judgments of inferior Courts and High Court cannot be termed as a Court of inferior

jurisdiction. Summing up its conclusions in Radhey Shyam (Supra), the Hon'ble Apex Court was of the view that challenge to judicial orders could

lie by way of appeal or revision or under Article 227 and not by way of a writ under Article 226 and 32 of the Constitution. Where remedy for

filing a revision before the High Court has been expressly barred, only in such a case, a petition under Article 227 of the Constitution would lie and

not under Article 226 of the Constitution. An order of Civil Court could be challenged under Article 227 and not under Article 226. Proceedings

under Article 227 are only supervisory in nature. Though power conferred under Article 227 is akin to that of an ordinary Court of appeal. Yet

such power is intended to be used sparingly and only in appropriate cases for purpose of keeping the subordinate Courts and Tribunals within the

bounds of their authority and not for correcting mere errors. Such power can be exercised in cases occasioning grave injustice or failure of justice

when the Court or Tribunal has assumed a jurisdiction not vested in it or has failed to exercise a jurisdiction vested in it or the jurisdiction has been

exercised in a manner which amounts to overstepping the limits of jurisdiction. Sounding a note of caution against exercise of supervisory

jurisdiction on drop of a hat, the Hon'ble Apex Court further observed in Radhey Shyam's Case (Supra);

As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at

times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the

administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High court will follow

the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Court's as the

highest courts of justice within their jurisdiction will adhere to them strictly.

Adverting to the facts of case in hand, be it seen that it fell within the province of writ Court exercising jurisdiction not under Article 226 of

Constitution of India but under Section 104 of Constitution of Jammu and Kashmir read with Section 561-A Cr.P.C. to quash the proceedings

before the trial Court which amounted to abuse of process of law. Writ Court was perfectly justified in observing that the nomenclature of the

petition was not of much significance and could not act as a bar to prevent abuse of process of law. It is a travesty of justice that the respondent

who was instrumental in detecting the tampering and forgery of treasury vouchers and bank receipts by the contractor Kuldeep Singh and unveiling

the ugly modus operandi adopted by the delinquent contractor and lodged FIR against him for the huge loss caused to State exchequer coupled

with the fact that the process initiated by him in nailing down the culprit made the delinquent contractor cough up an amount of Rs. 90.00 lacs out

of Rs. 97,50,000/-fraudulently swindled by him, should have suffered the ignominy of being a collaborator in crime. The setting of facts, as

revealed during investigation, portrays the respondent as a conscientious citizen who exhibited sensitivity in bringing the cheating scam to light and

set the machinery of law in motion albeit after seeking advice from his superiors paving wave for recovery of Rs. 90.00 lacs from the unscrupulous

contractor. Tables were turned on the respondent with the investigating agency and the sanctioning authority in subsequent FIR against respondent

showing scant respect for the materials assembled during investigation of the FIR No. 8/1996, registered at the instance of respondent and

oblivious of consequences it would have on the outcome of trial in the aforesaid case. Learned writ Court has taken note of the report of inquiry

officer who assigned thirteen reasons for exonerating the respondent of charges levelled against him. Indisputably respondent was reinstated in

token of acceptance of the report of Inquiry Officer and subsequent to his posting selection grade of KAS was released in his favour. Thus, there

is no scope for disputing the proposition that the respondent has acted fairly and upheld rule of law. The writ Court was justified in taking the view

that recording of second FIR leading to fresh investigation was unwarranted and illegal. It was also within its rights to hold that the order according

sanction for prosecution of respondent suffered from non-application of mind. Viewed thus, no exception can be taken to the finding recorded by

the writ Court that the prosecution against respondent was launched without any valid sanction and, therefore, cognizance taken by Special Judge

was without jurisdiction.

Having conspectus of the aforesaid facts, we are of the considered opinion that the impugned order does not suffer from any legal infirmity.

This is apart from the fact that the impugned order has been passed under Section 104 of State Constitution corresponding to Article 227 of

Constitution of India and no intra Court appeal is maintainable against it.

The appeal is accordingly dismissed.