Bhomesh Sharma vs State of Jammu & Kashmir and Others

Y.P. Nargotra, J.—The criminal justice system aims to ensure social harmony through law and its enforcement. Its object is to control crime.

Three institutions, namely, Police, Judiciary and Prisons, are the chief components of the system. The role of police, which investigates the

offences, being foundational is most crucial for achieving the goal. The success of the system principally depends upon the quality of the

investigation conducted by the police. The quality investigation contemplates reaching out to the real perpetrator(s) of the crime and gathering such

trustworthy, dependable and relevant evidence, on the basis of which it can be established in a competent Court of Law beyond any reasonable

shadow of doubt that such criminal(s) alone has/have committed the crime. This can be achieved by honest, objective, impartial and fair

investigation. When the investigating agency fails either to reach out to the actual perpetrator of the crime or to gather best evidence, then justice

becomes the casualty. And in a case where Investigating Officer collects the best evidence in a criminal investigation and then for any reason

whatsoever allows the same to be lost or destroyed, then criminal justice system itself goes into disrepute. Unfortunately, this thing has happened in

respect of investigation being conducted by the Vigilance Organization, a prime investigating agency of the State, into FIR No. 20/2005.

FIR No. 20/2005 was registered by Police Station Vigilance Organization on 6.12.2005 against accused Bhomesh Sharma (Petitioner herein)

son of Sh. Brij Mohan Sharma, resident of Pacci Dhaki, Jammu, at present Sector No. 5 Trikuta Nagar (Extension), Jammu, Regional Transport

Officer, Kathua, headquarter at Lakhanpur, on the allegation that he by indulging in corrupt practices and benami transactions has amassed huge

wealth, far beyond his known sources of income, and that secret inquiries conducted revealed that the accused has raised the assets mentioned in

the FIR. After registration of FIR, the investigation was commenced. The Investigating Officer on 6.12.2005 obtained search warrants from the

Special Judge Anti Corruption, Jammu, one of those being for raiding the house of Bhomesh Sharma, the accused, at Sector No. 5, Trikuta Nagar

(Extension), Jammu for searching for allied records/related documents essential to the investigation. It appears that the Investigating Officer when

found that at the said house Sh. Brij Mohan Sharma, father of accused and Shiv Kumar Sharma and Rajesh Kumar Sharma, brothers of accused

along with the accused were living, he obtained an order dated 7.12.2005 from Sr. Superintendent of Police, Vigilance Organization for authorizing

him in terms of Section 165(3) of Criminal Procedure Code to search that house for tracing out the documents pertaining to disproportionate

assets raised by accused Bhomesh Sharma. Accordingly, the Investigating Officer conducted raid on the said house and searched the same. During

search the items found in the house were inventorized, which included about 78 documents and 35 rubber stamps. Out of the 35 rubber stamps,

five stamps were of the following description:

i. Sub Registrar, Katra

ii. Copy Issuing Stamp in Urdu

iii. Block Development Officer, Reasi

iv. Regional Transport Officer, Jammu

v. Signature stamp.

A seizure memo was prepared for the same on 7.12.2005. The seized articles and documents thus came into the custody of Investigating

Officer, whereas the other articles recovered including jewellery were handed back to the father of accused on his supurdanama.

On 12.2.2006 the Sr. Superintendent of Police, Vigilance Organization, Jammu filed an application before the learned Special Judge Anti

Corruption, Jammu, stating therein as follows:

I may bring it to the notice of Hon'ble Court that I was away from my office with effect from February 05, 2006 to February 09, 2006 to undergo

a training course held at CBI Academy Ghaziabad (UP). On February 08, 2006, I learnt from Shri Amanat Ali Shah, Dy. SP (PRK) Vigilance

Organization, Jammu that Insp. Nissar Hussain Shah No. 49/SVO approached him at his residence on 8th February 2006 in the evening and

disclosed that some important record and rubber stamps seized during the house search of the accused Bhumesh Sharma and others on 07/08-12-

2005 in case FIR No. 20/2005 u/s 5(1) (e) read with Section 5(2) P. C. Act Svt. 2006 registered with Police Station Vigilance Organization,

Jammu were missing.

On my arrival at Jammu, I called Insp. Nissar Hussain Shah No. 49/SVO (Investigating Officer) to my office on February 10, 2006 and enquired

about the details of missing record and rubber stamps. The I.O. concerned disclosed that during the scrutiny of record he found the following

record and rubber stamps missing:

(I.) Seizure-memo marked as 'A'

(1) Item No. 7 (A passbook Account No. 10582387998 SBI Hari Market, Jammu 0657 in the name of Rajesh Sharma, Chairman Sarswati

College of Education);

(2) Item No. 25 (Proposed Drawing of Hotel Palace View, Katra passed by Block Development Officer Reasi). Out of three, one drawing

missing;

(3) Item No. 29 (Lease Deed of Bhumesh Sharma & Rajesh Sharma dated 20.09.2004 in favour of Durga Educational Charitable Trust through

Shri B. M. Sharma) : 13 leaves missing;

(4) Item No. 47 (Photocopies of Trust Deed dated 02.11.2001 between Mst. Manju Manhas W/O Harsh Dev Singh R/O House No. 27/B

Gandhi Nagar, Jammu, Rajni Bala W/O Hari Singh R/O Paloura and Smt. Anita Rani W/O Jagdish Singh Settlers and Trustees Himalayan

Educational Trust situated at Paloura, Jammu alongwith a leaf of Letter Pad J&K National Panthers Party bearing writing with Ball Pen: 12 leaves;

(5) Item No. 58 (Copies of Jamabandi, Aks-Tatima and Khasra Girdawari) only copies of Khasra Girdawari missing;

(6) Item No. 76 (Photocopy of letter No. Nil dated Nil bearing signature of Commissioner to Government, Information & Transport Department

regarding granting of permission to sub lease 6 Kanals and 17 Marias of land situated at Village Kundrorian Tehsil Reasi addressed to Bhumesh

Sharma, Assistant Regional Transport Officer, Udhampur.

(II) Rubber Stamps

(1) Sub Registrar Katra;

(2) Copy Issuing Stamp in Urdu;

(3) Block Development Officer, Reasi;

(4) Regional Transport Officer, Jammu;

(5) Signature Stamp.

The above mentioned rubber stamps have been replaced by the following stamps:

(1) For Saraswati College of Education (Rajesh Sharma), Chairman

(2) For Durga College of Education, Chairman

(3) For Durga Educational Charitable Trust, Trustee

(4) M/S Hotel Palace View, Katra (P. Ltd. Katra J&K)

(5) Indian Institute of Driving & Maintenance, Prop.

I may bring it to the kind notice of Hon'ble Court that case FIR No. 20/2005 u/s 5(1) e read with Section 5(2) P. C. Act Svt. 2006 was registered

with P/S Vigilance Organization, Jammu on December 06, 2005. The searches including that of the house of accused Bhumesh Sharma and others

were conducted on December 07, 2005. The search of house started on December 07, 2005 at about 0830 hours by the Vigilance team headed

by Shri Amanat Ali Shah, Dy. SP as per the prescribed procedure in Cr.P.C. which continued uptill 0600 hours next day i.e. December 08, 2005.

The search proceedings and seizure memos were produced in the Hon'ble Court of Special Judge Anti Corruption, Jammu which were examined

and authenticated by the Hon'ble Special Judge on December 09 & 10, 2005. The record/material seized from the house of accused Bhumesh

Sharma remained with Shri Amanat Ali Shah, Dy. SP till December 14, 2005. On December 15, 2005 the seized record/rubber stamps etc. were

handed over to Insp. Nissar Hussain Shah No. 49/SVO through Constable Uksha Anand No. 75/SVO. From December 15, 2005 to February

08, 2006 the record remained in the custody of Investigating Officer concerned.

As per the directions of Central Vigilance Office, it was obligatory on the part of Investigating Officer concerned that he should have deposited the

seized record/rubber stamps etc. with the Incharge Malkhana Vigilance Organization, Jammu, but he failed to do so. On being asked to explain his

failure to do so, he put forth the plea that he could not deposit the seized material with the Malkhana, as it was yet to be scrutinized. The retention

of seized articles by the Investigating Officer for such a long time (53 days) is not justified and it is very disheartening to hear that he could not

scrutinize the seized record in a period of more than seven weeks. It appears that the accused person in above cited case has been able to

penetrate deep in the Vigilance Organization and has made abortive attempt to thwart the legal process by destroying the material evidence in

connivance with some black sheep in our Organization. A detailed report was submitted to the Commissioner of Vigilance, J&K, Jammu vide this

office communication No. SSP/PRK/06/Secret-08/J dated 10.02.2006. On receipt of report, the Commissioner of Vigilance vide his office order

No. 44/CV of 2006 dated 10.02.2006 placed the Investigating Officer Inspector Nissar Hussain Shah No. 49/SVO under suspension pending a

formal departmental enquiry to look into the facts and circumstances of this serious matter. He further directed to withdraw investigation of above

cited case from the said Inspector and entrust it to some other officer.

Pursuant to the directions of Commissioner of Vigilance, the investigation of case has been transferred and entrusted to Shri Hari Krishan Nazar,

Dy. SP (PRK) Vigilance Organization, Jammu vide this office order issued under endorsement No. SSP/PRK/06/394-96/J dated 10.02.2006. He

has further directed this office vide his communication No. SVO/FIR-20/05-P/S-VOJ-1517 dated 10.02.2006 to take immediate steps to rebuild

the record pertaining to the lost information. Taking serious note and acting swiftly into the matter, the Commissioner of Vigilance vide his office

No. SVO/FIR-20/05-P/S-VOJ-1518 dated 10.02.2006 has also issued the articles of charges against the delinquent official for the negligence

and dereliction of duties as envisaged under Classification, Control and Appeal Rules.

Hence, the detailed report is submitted for favour of information and kind perusal.

On receiving the aforesaid application of Sr. Superintendent of Police, Vigilance Organization, Jammu, the learned Special Judge Anti

Corruption while taking serious view of the matter vide his order dated 14.2.2006 directed the Vigilance Organization, Government of J&K,

through Commissioner of Vigilance to register a separate FIR and take up the investigation with promptitude. He also directed for filing the status

report in the Court on 20.2.2006. Pursuant to the directions of learned Special Judge Anti Corruption, the Vigilance Organization registered FIR

No. 4/2006 for commission of the offences u/s 5(2) of Prevention of Corruption Act read with Section 120(B) RPC and started investigation of

the case.

It may be pointed out here that as per the information provided through application to the learned Special Judge Anti Corruption, Jammu by Sr.

Superintendent of Police, five rubber stamps seized had been replaced by other five rubber stamps. Admittedly, after the registration of case under

FIR No. 4/2006, the Investigating Officer, in whose possession the seized articles were before they went missing, has not been arrested for

custodial interrogation by the Vigilance Organization. However, Bhomesh Sharma, accused in FIR No. 20/2005, the petitioner herein, was

summoned by the Sr. Superintendent of Police and was questioned about the documents and articles, which were missing from the custody of

Investigating Officer, who was investigating the case in FIR No. 20/2005. The petitioner fearing his false implication in FIR No. 4/2006 has filed

the present writ petition u/s 103 of the Constitution of J&K for seeking transfer of the investigation of FIR Nos. 20/2005 and 4/2006 from the

Vigilance Organization to some other investigating agency on the ground that the Vigilance Organization as an institution has disqualified itself from

investigating the case in view of the fact that its own officer prima facie is involved in the commission of offence.

The stand of Vigilance Organization as mainly disclosed in Para-2 of the counter affidavit is as under:

In respect of the subject petition, it is respectfully submitted that it revolves around an episode wherein certain documents and material were found

missing from the custody of Investigating Officer, certainly at the instance of the person/persons against whom this evidence was collected in FIR

No. 20/2005 P/S Vigilance Organization, Jammu. Now the question arises against whom these documents and material was collected during

investigation as a piece of evidence and against whom it could be used in the court of law. Obviously, the person accused of commission of

offences in FIR No. 20/2005 P/S Vigilance Organization, Jammu which is none else than the petitioner. After the registration of case FIR No.

04/2006 P/S Vigilance Organization, Jammu, the Vigilance Organization in order to reach the truth started looking into the incident of missing of

documents and material from different angles including as to who could be the beneficiaries of destruction of this evidence and with whom such

persons connived to lay their hands for getting the documents and material, but in the meanwhile the Hon'ble Court stayed the investigation.

I have heard learned senior counsel appearing for petitioner and learned Additional Advocate General for respondents.

Mr. Z. A. Shah, learned senior counsel for petitioner has argued that the investigating agency under law is bound to make investigation into the

alleged commission of offence in an objective, impartial and fair manner. According to him, in the present case, the complainant is the Vigilance

Organization and the accused/Investigating Officer is also an officer of Vigilance Organization; admittedly, the documents and seized articles have

gone missing from the possession of Investigating Officer and the investigation into the alleged offence is also being conducted by the Vigilance

Organization itself, so in such a situation objective, impartial and fair investigation cannot be expected. Mr. Shah submits that from the reply

submitted by the Vigilance Organization, institutional bias against the petitioner is evident, as even before conducting the investigation, it is having

preconceived notion about the involvement of petitioner into the offence. He submits that because of the institutional interest, which the Vigilance

Organization has for protecting its prestige, false implication of petitioner and unwarranted protection to its own officer cannot be ruled out at the

hands of Vigilance Organization. He argues that the interest of justice would be better served if an independent agency like the one Crime Branch

investigates FIR No. 4/2006 as well as FIR No. 20/2005 so as to reach the truth.

On the other hand, the contention of Mr. B. S. Salathia, learned AAG is that the Vigilance Organization is a statutory entity, entrusted with the

duty of investigating the cases involving corruption. According to him, merely because one of its officers is involved in the commission of the

offence of destruction of evidence, it cannot be said that whole of the Organization has lost its credibility. He submits that the Vigilance

Organization should be trusted and allowed to proceed with the investigation of cases.

I have considered the respective contentions of learned Counsel for the parties. At this stage the limited question involved for consideration is

whether the Vigilance Organization should be allowed to continue with the investigation of aforesaid FIRs. It is the admitted case of respondents

that the case property seized in FIR No. 20/2005 has disappeared from the custody of Investigating Officer of the Vigilance Organization.

Undoubtedly this is a serious matter which is likely to effect adversely the investigation of FIR No. 20/2005. The prime suspect for such

disappearance of the case property would be the person in whose custody the same was. Such person is an officer of the Vigilance Organization

itself. If the Vigilance Organization investigates the case and ultimately fails to establish the involvement of its officer in the case, the inference which

may be drawn by a common man would be that the Vigilance Organization has helped the accused to go free from the clutches of law, which may

result in loss of faith by the public in the criminal justice system and in the Vigilance Organization as well. So that public does not loose its faith in

the system, it is necessary that the investigation conducted should not only be objective, fair and impartial but should also look to be objective, fair

and impartial. Therefore, in my considered opinion it would be in the interest of justice that the FIRs in hand are investigated by an independent

agency. In Ramesh Kumari v. State (N.C.T. of Delhi) AIR 2006 SCW 1021 their Lordship of the Supreme Court while dealing with the similar

situation found that investigation by the CBI would serve the ends of justice. It was observed ""we are also of the view that since there is allegation

against the police personnel, the interest of justice would be better served if the case is registered and investigated by an independent agency like

the CBI.

In view of the above, this writ petition is allowed. I, accordingly, direct that investigation of FIR Nos. 20/2005 and 4/2006 be transferred from

the Vigilance Organization to the Central Bureau of Investigation. The CBI shall now register fresh FIRs on the allegations contained in FIR Nos.

20/2005 and 4/2006 and investigate the same. It shall also be at liberty to arrest any person(s) for custodial interrogation who is suspected to be

involved in the commission of offence(s). It is, however, clarified that by the above direction I am not entering into the merits of the controversy

involved in any of the two cases nor casting any aspersions on anybody including the Vigilance Organization. The CBI shall submit a status report

to this Court through the Registrar Judicial within a period of three months from the date of registration of FIRs by it. The Registrar Judicial shall

place the same before the Court for appropriate orders. This writ petition stands disposed of in the terms indicated above.

The case diaries taken for perusal have been returned to Mr. B. S. Salathia, AAG, in the open Court.