Ab. Majid Wani vs State of J&K & Ors.

Muzaffar Hussain Attar, J. (Oral) - In this writ petition, notice dated 16.11.2015 and 17.12.2015 are called in question.

In terms of notice/summons dated 16.11.2015, the petitioner has been asked to file his comments personally or through a duly authorised

person before the Commission on 01.12.2015 at 10.00 a.m. The petitioner has also been asked that in the event he decides to defend himself,

then he shall submit his comments/statement of defence along with accompanying documents and a list of witnesses upon which he intend to rely

upon.

Through the aforesaid notice, petitioner was further informed that on his failure of filing comments before the Commission on the date and time

fixed, it shall be legally presumed that he has nothing to say about the allegations levelled against him and the Commission without holding further

enquiry will submit its report to the competent authority for the proposed action to be taken against him.

Petitioner submitted an application dated 17.12.2015 to the respondent-Commission and prayed for issuance of certified copies of the affidavit

accompanying the complaint, the order pertaining to the issuance of process and the other orders passed till the aforesaid date.

The Deputy Registrar of the Respondent-Commission has in his note dated 17.12.2015 recorded that complaint is at preliminary stage and as

per the rule 18 of the J&K Accountability Rules, 2005, the Commission may subject to the provisions of the Act and the rules issue to any person

a certified copy of any order, information or evidence other than the copy of the report of the preliminary enquiry and the information or evidence

obtained in connection with such preliminary enquiry or investigation.

Mr. K.S. Johal, learned Sr. Advocate appearing for the petitioner submitted that the respondent-Commission has not complied with Section 12

of the J&K Accountability Commission Act, 2002 (for short the Act of 2002), inasmuch as, no preliminary scrutiny has been conducted in the

manner it is delineated in Section 12 of the Act of 2002. Learned counsel further submitted that from the impugned notice, it appears that the

respondent-Commission has given go-by to Section 12 of the Act of 2002, inasmuch as, without conducting preliminary scrutiny, the impugned

notice has been issued. Learned counsel submitted that respondent-Commission is duty bound to provide the copies of the material about which he

has filed the application before the Commission. Learned counsel further submitted that before the issuance of notice, the respondent-Commission

is duty bound to apply its mind and record satisfaction for initiation of the enquiry/investigation against concerned public functionary. Learned

counsel submitted that complaint filed before the respondent-Commission is like Criminal complaint and like Criminal Court, the respondent-

Commission has to record some reasons before the issuance of notice to the concerned public functionary. Learned counsel in support of his

contention referred to and relied upon the judgment of Hon'ble Supreme Court in AIR 1998 SC 128 in case title Pepsi Foods Ltd. and Anr. v.

Special Judicial Magistrate and Ors. Learned counsel, accordingly, prayed for allowing of this writ petition.

Though no notice is issued in the writ petition, but in order to determine the issue raised in the writ petition, Mr. Rahul Pant, learned counsel

appearing for the respondent-Commission was requested to appear and assist the Court. Learned counsel after seeking instruction in the open

Court submitted that notice dated 16.11.2015 has been issued in terms of Sub Section 2 of Section 12 of the Act of 2002 for conducting of the

preliminary Scrutiny of complaint. Learned counsel further submitted that the Commission in terms of impugned note dated 17.12.2015 itself has

stated that complaint is at preliminary stage. Learned counsel submitted that in the aforesaid fact situation this writ petition is not maintainable.

Learned counsel submitted that preliminary scrutiny is to be conducted in terms of Section 12 of the Act of 2002 and cannot be equated with the

initiation of the proceedings in a criminal complaint by criminal Court. Learned counsel, accordingly, prayed for dismissal of the petition.

This Court in its decision dated 01.02.2016 in batch of LPAs with lead case being LPA No. 15/2013 connected with LPA No. 21/2013 has

underscored the importance of protecting the rights of a public functionary. The observations made in the aforesaid judgment are based on the

provisions of the Act of 2002, more particularly, sections 11 and 12 thereof. Section 12 of the Act of 2002 casts a duty on the Accountability

Commission to hold preliminary scrutiny of the complaints to ensure that false and vexatious complaints are weeded out and the reputation of the

public functionary does not come under eclipse.

Conducting of the preliminary scrutiny in terms of Section 12 read with section 11(3) of the Act of 2002 is a mandate of the statute which is to

be followed with religious zeal. Respondent-Commission cannot give go-by to the provisions of Act of 2002, more particularly, sections 11(3) and

12.

In the fact situation of this case and in view of the statement made by Mr. Rahul Pant at the Bar coupled with the note dated 17.12.2015 which

is also called in question in this petition, it is held that the respondent-Commission is still conducting preliminary scrutiny of the complaint filed

against the petitioner. The respondent-Commission, it appears, in the interest of justice and in view of the mandate of Section 12(2) of the Act of

2002 has asked the petitioner to file his comments. This procedure adopted by the respondent-Commission is in consonance with the fundamental

principles of rules of justice. The respondent-Commission in terms of Section 12(1) could have recorded satisfaction even without calling for

comments from the petitioner but in order to arrive at just and proper prima facie view the petitioner has been given an opportunity to file his

comments. Petitioner would be entitled to copies of documents/orders in accordance to the provisions contained in the J&K Accountability

Commission Act, 2002 and the J&K Accountability Commission Rules, 2005 as and when proceedings reach to such a stage.

In view of our above recorded reasons, we find no merit in this writ petition and is, accordingly, dismissed in limine. Respondent-Commission

shall comply with the provisions of Sections 11(3) and 12 of the J&K Accountability Commission Act, 2002.