Laiq Parvez vs Union Territory Of J&K

Ali Mohammad Magrey, J

This application is filed on behalf of the applicant seeking permission of this Court to file the accompanying Bail Application without enclosing therewith the requisite Stamp Paper, Court fee, etc.

For the reasons mentioned in the application, coupled with submissions made at the Bar, the instant application is allowed and the applicant is permitted to file the Bail Application, being B. A. No. 75/2020, without enclosing therewith the requisite Stamp Paper, Court fee, etc. It is, however, directed that the said deficiency shall be immediately made good by the applicant, as and when the prevailing lockdown period, announced by the Government on account of outbreak of COVID-19 Pandemic, comes to an end and the Courts start functioning in the normal manner.

CrlM disposed of as above.

B. A. No. 75/2020:

By medium of the instant application, the applicant is seeking bail in anticipation of his arrest in connection with case bearing FIR No. 0/2020, registered by Police Station, Anti-Corruption Bureau, South Kashmir, for the commission of offence punishable under Sections 5(1)(d) r/w 5(2) of the J&K Prevention of Corruption Act, Samvat 2006 and Section 120-B of the Ranbir Penal Code (RPC).

The brief facts, put in a nutshell, leading to the filing of the instant application, as come to fore from a perusal of the pleadings on record, are that the applicant claims to have retired from Government service upon reaching the age of superannuation and rendering satisfactory service spanning over two decades on 30th of April, 2019 as Programme Officer, Integrated Child Development, Senior Scale KAS Cadre post. It is stated that after a period of six months from the date of retirement of the applicant from Government service, a questionnaire, bearing No. SSP (APKS)ACB-Veri/07/2018-2127 dated 17th of October, 2019, with respect to verification No.07 of 2018 was served on the applicant by the Inquiry Officer, Anti-Corruption Bureau, South Kashmir, wherein it has been stated as under:

"...It surfaced during verification that Shri Laiq Parvaiz S/o Abdul Kareem Kriyapak R/o Bulbul Bagh Barzulla Srinagar A/P Green Avenue Airport Road Hyderpora Budgam has remained posted as General Manger District Industries Centre Pulwama from June 2017 to ending Feb. 2018. During his posting he made allotments of land in favour of various unit holders in gross violation of Industrial Policy-2016 as well as procedural guidelines issued vide No. 129-Ind of 2017 dated 07.06.2017. As per industrial policy of 2016, the allotment of land to unit holders and execution of lease deeds is domain of SICOP/SIDCO and procedural guidelines No. 3.1, 3.2, 4.1 further specify that SICOP/SIDCO shall notify new industrial state and office notified by corporation shall issue that final allotment order with in 07 Days of approval by 07 single window clearance committee. Regarding the execution of lease deeds, the same shall be executed by the allottee and SICOP/SIDCO, as case may be, within 60 days from the date of issuance of allotment order. The said General Manager not only issued allotment orders qua the land but also executed lease deeds thereof with the unit holders which in view of rules, fails with competence of SICOP/SIDCO. By acting in this matter the said General Manager , DIC Pulwama namely sh. Shri Laiq Parvaiz by sheer abuse of his official position just for his ulterior motive, in league with the unit holders, has made only selective application of main Indistrual policy without factoring in the guidelines issued on the subject, thus conferred undue benefits upon them. The aforementioned facts constituted Commission of offences Punishable under section 5(1)(d) r/w 5(2) of J&K P.C. Act Svt. 2006 and section 120-B RPC. Consequently, a case FIR No. 03/2020 is refered against Shri Laiq Parvaiz S/o Abdul Kareem Kriyapak R/o Bulbul Bagh Barzulla Srinagar A/P Green Avenue Airport Road Hyderpora Budgam then General Manager District Industries Centre Pulwama (Now Retired) and otheris P/S Anti-corruption Bureau South Kashmir. The investigation of the case is entrusted to inspector Mushtaq Ahmad No. 7850/NGO."

The questionnaire aforesaid, as stated, vide Memo of Reply dated 25th of October, 2019, was responded to by the applicant bringing thereby to the attention of the Enquiry Officer the relevant provisions of the Industrial Policy in force, viz. Industrial Policy as well as the relevant procedural guidelines notified by the Government vide Government Order No. 129-Ind of 2017 dated 7th of June, 2017. It was demonstrated that the act and conduct of the applicant in making allotment of land to the unit holders and execution of Lease Deeds as well as the extension of validity period of registration was well within the exclusive domain of the General Manager, District Industries Centre, Pulwama, i.e., the post held by the applicant at the relevant point of time. Inspite of clarifying the aforesaid position to the Enquiry Officer that the action of the applicant, questioned in the questionnaire, was/ is within the domain, power and authority of the General Manager of District Industries Centre, Pulwama and that the very premise, on which the questionnaire proceeded, were factually unfounded and legally misconceived, thus, wholly unwarranted, the First Information Report (FIR) No. 03/2020, in a most mechanical and perfunctory manner under the erstwhile Prevention of Corruption Act, Svt. 2006, was registered on 7th of July, 2020 against the applicant by the Senior Superintendent of Police, Anti-Corruption Bureau, South Kashmir, for the commission of offences punishable under Section 5(1)(d) and Section 5(2) of Prevention of Corruption Act, Svt. 2006 read with Section 120-B of the erstwhile Ranbir Penal Code (RPC). Thereafter, the applicant claims to have approached the Court of learned Special Judge, Anti-Corruption, Pulwama, for seeking bail in anticipation of his arrest in connection with the aforesaid case. The learned Special Judge, Anti-Corruption, Pulwama, after hearing the counsel for the parties and in terms of judgment dated 22nd of August, 2020, has dismissed the application of the applicant. Aggrieved thereby, the applicant has knocked at the portals of this Court with the instant application seeking bail in anticipation of his arrest in the aforesaid case.

Mr R. A. Jan, the learned senior counsel, appearing on behalf of the applicant, submits that in view of the provisions of the Industrial Policy, 2016-26 and the procedural guidelines notified by the Government vide Government Order No.129-Ind of 2017 dated 7th of June, 2017, no offence is made out against the applicant, commission of which has been imputed to the applicant in the FIR registered by the Anti-Corruption Bureau, South Kashmir. It is pleaded that the allegations levelled against the applicant in the FIR, if taken on their face value, do not, ex-facie, disclose and/ or make out the offence of criminal misconduct within the meaning and contemplation of Section 5(1)(d) of the Prevention of Corruption Act, Svt. 2006 and, instead, are indicative of the fact that the FIR has been registered in a most mechanical and perfunctory manner, thereby depicting total non-application of mind on the part of the registering authority, for, in law, it is only when there exists a reason to suspect commission of cognizance offence that an FIR can be lodged and criminal law set into motion. The learned senior counsel has proceeded to contend that the learned Special Judge, Anti-Corruption, Pulwama, while rejecting the application of the applicant seeking bail in anticipation of his arrest, has not considered the case of the applicant in its true and correct perspective inasmuch as even the provisions of the Industrial Policy, 2016 and the law cited at the Bar by the counsel representing the applicant do not appear to have been taken into consideration by the learned Judge while dismissing the application of the applicant. In this backdrop, the learned senior counsel pleads that the applicant deserves to be granted bail in anticipation of his arrest in connection with FIR No. 03/2020 registered by the Anti-Corruption Bureau, South Kashmir.

Mr B. A. Dar, the learned Senior Additional Advocate General, available through Virtual mode, submits that the case registered against the applicant is in its initial stage and a reasonable time is required for the concerned authority/ agency to investigate the matter. Mr Dar further submitted that the anticipatory bail, if granted to the applicant at this initial stage, will not only halt the investigation, but will also hamper it badly, thereby resulting in consumption of very material and important evidence.

Heard the learned counsel for the parties, perused the pleadings on record and considered the matter.

It is settled principle of law in the process of granting bail that the Court concerned should be satisfied that the accused being enlarged on bail will not be in a position to tamper with evidence. When allegations of tampering of evidence are made, it is the duty of the Court to satisfy itself as to whether those allegations have basis and if the allegations are not found to be concocted it would not be a proper exercise of jurisdiction in enlarging the accused on bail. This, if allowed, will encourage the litigant to make half a dozen applications on the same point without any new factor having arisen after the first one was rejected.

Grant or refusal of regular bail or anticipatory bail has to be made having regard to the nature of the crime, the circumstances under which it was considered, the background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witness, its impact on the society and possibilities of retribution. The analogy for entertaining a subsequent or second application for bail or anticipatory bail when it was earlier rejected, the consideration would be the same. The change of the fact situation may differ from case to case. Hon'ble the Supreme Court in case titled 'State of Maharashtra v. Captain Buddihikota Subharao: MANU/SC/054/1989', while dealing with a case for the grant of bail in almost the similar circumstances, observed that 'when we speak of change, we mean a substantial one, which has a direct impact on the earlier decision and not merely a cosmetic change which are of little or of no consequence.'

Viewed in the above context; on consideration of the facts of the case; and the law governing the subject of grant of bail, I am of the view that the successive or subsequent bail application or anticipatory bail application on the same very facts/ grounds on which the earlier one was rejected by the Court of competent jurisdiction cannot be entertained, unless it is shown that there is a substantial change in the fact situation or in the law, which requires earlier view being interfered with or where the earlier finding has become obsolete. Change in fact situation would never mean any new or additional ground which was earlier available to the accused, but that was not taken on the earlier occasion. In the case on hand, there is no change of circumstance, whereas, it is a case whereupon consideration of the material on record and hearing the submissions of the counsel for parties, the Court of competent jurisdiction consciously rejected the prayer for anticipatory bail of the applicant on merits. There is nothing on record nor any argument has been advanced on behalf of the applicant to show that there has been any substantial change of circumstances after rejection of the earlier anticipatory bail application, which would necessitate reconsideration of the prayer afresh.

Apart from the above, if appreciated in the perspective of the claim, I am of the view that the Courts should be too slow to thrive the second application of a party for anticipatory bail where the earlier one has been rejected and there is no substantial change of circumstance or event. Further, repetition of prayer for anticipatory bail after rejection by the competent Court after invoking the power of review of the decision of the earlier Court may lead to judicial anarchy about which caution has been sounded by the Apex Court of the country in umpteen judicial dictums.

In view of the above, I do not find any merit in this application filed by the applicant seeking bail in anticipation of his arrest and, as such, same shall stand dismissed accordingly. It is, however, made clear that this order shall not come in the way of the applicant/ accused to approach the Court of competent jurisdiction for seeking regular bail and that the observations made hereinabove shall not be deemed to be any comment upon the merits of the case.