Sukhdev Singh vs Vigilance Org. Jammu & Ors

These two petitions primarily challenge the order dated 18.07.2013 passed by the learned Special Judge, Anti Corruption, Jammu in File No. 188/Challan (FIR No. 48 of 1994 registered with Police Station Vigilance Organization, Jammu) for offences under Sections 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 2006 (for short "the Act of 2006") and Section 120 of the RPC.

The order impugned passed in OWP No. 73/2018 in regard to the petitioner, Sukhdev Singh for purposes of reference is reproduced hereunder:

"I Puneet Gupta, Special Judge, Anti Corruption, Jammu do hereby charge you, S. Sukhdev Singh S/o Utam Singh R/o H. No. 522 Nai Basti, Jammu Camp Cantt. Then AEE and General Secretary of All J&K Graduate Engineers Association, Now Xen PDC Baramulla as under:

That while you were General Secretary of All J&K Civil Engineers Graduate Association, you connived with the co-accused and in pursuance of same the accused K. S. Ulfat made a false report and consequently the co-accused S. C. Verma, the then Xen, allotted 27 kanals 6 marlas of land falling in survey No. 390 Raipur Satwari vide order No. 4887-89 dated 24.10.91 in favour of the General Secretary of All J&K Civil Engineers Graduate Association and of which your were the General Secretary.

That in pursuance to the said allotment order agreement came to be executed between you and K. S. Ulfat on 15.10.1991 and which was registered in the Court of law with regard to 27 kanals and 6 marlas though only 2 kanals and 3 marlas of the land was vacant at that time.

That because of the act of co-accused the benefit of allotment was unduly bestowed upon you.

That the co-accused S. C. Verma, then Xen, had no legal authority to make allotment order in your favour.

Thus you have committed offence u/s 5(1)(d) 5(2) P.C. Act 2006 read with section 120-B RPC which is within the cognizance of this Court."

The order impugned passed in OW104 No. 82/2013 in regard to the petitioner S. C. Verma is reproduced hereunder:

"I Puneet Gupta, Special Judge, Anti Corruption, Jammu do hereby charge you, S. C. Verma S/o late Sh. Mani Ram R/o H. No. 24 New Plot, Jammu then Xen Irrigation Division, No. II Jammu, (now retired) as under:

That while you were posted as Executive Engineer, Irrigation Division No. II Jammu, you abused your official position and in connivance with the co-accused allotted 27 kanals 6 marlas of land falling in Survey No. 390 Raipur Satwari vide order No. 4887-89 dated 24.10.91 in favour of the General Secretary of All J&K Civil Engineers Graduate Association and of which co-accused Sukhdev Singh was the General Secretary.

That in pursuance to the said allotment order agreement came to be executed between the accused K. S. Ulfat then AEE Irrigation Sub Division, Bishnah and Sukhdev Singh on 15.10.1991 and which was registered in the Court of law with regard to 27 kanals and 6 marlas though only 2 kanals and 3 marlas of the land was vacant at that time.

That because of your act of allotment the undue benefit was bestowed upon the accused, Sukhdev Singh.

That you were not competent to make allotment of land.

Thus you have committed offence u/s 5(1)(d) 5(2) of P.C. Act 2006 read with section 120-B RPC which is within the cognizance of this Court."

Before proceeding further, it is necessary to give briefly the background in which the present controversy has arisen, which will explain the backdrop in which the Vigilance Organization had registered the case against the petitioners, finally culminating in the passing of the orders impugned.

The petitioner in OWP No. 73/2018 claiming to be an elected General Secretary of the All Jammu and Kashmir Civil Engineering Graduates Association filed a representation for allotment of a piece of land on rental basis purportedly with a view to carry out the activities of the Association. The representation was filed before the Assistant Executive Engineer, namely, S. C. Verma, who is petitioner in OW104 No. 82/2013. The representation was got processed by the Assistant Executive Engineer through his subordinates and finally land measuring 27 kanals 06 marlas was approved for allotment vide order dated 24.10.1991. An agreement dated 25.10.1991 also came to be executed between Sukhdev Singh (petitioner in OWP No. 73/2018) and S. C. Verma (petitioner in OW104 No. 82/2013) in his capacity as Assistant Executive Engineer, Irrigation Division, Bishnah in regard to land measuring 27 kanals 06 marlas falling in Khasra No. 390 situate at village Raipur near Nai Basti, Jammu on rental basis fixed at a nominal rent of Rs. 80/- per kanal/per year. According to the said agreement, which was duly got registered, the possession of the land in question was also purported to have been handed over.

Three paragraphs of the agreement executed between the aforementioned two petitioners, in my opinion, are relevant and need to be reproduced here-in-below, primarily with a view to show how the petitioner, S. C. Verma exercised his authority in his capacity as Assistant Executive Engineer:

"This deed of Agreement is made this 25th day of October, 1991 at Jammu between Governor through Assistant Executive Engineer, Irrigation Division, Bishnah (hereinafter referred to as party of 1st part) and All Jammu and Kashmir Civil Engineering Graduates Association (CEGA) through its General Secretary, S. Sukhdev Singh (Er) (hereinafter referred to as party of 2nd part) and both parties agreed with the following terms and conditions:

Whereas the party of the 2nd part is recognized by the Government of Jammu and Kashmir had desired to have piece of land bearing Khasra No. 390 measuring 27 kanals 6 marlas on rental basis situate at village Raipur near Nai Basti, Jammu for the purposes of carrying on its activities etc.

And whereas the party of 1st part has also agreed for the purpose to allow, permit and only seek nominal rent for carrying on the activities of the Association.

Now this deed witnesseth as under:

That the party of 1st part hereby agrees and sanctions piece of land measuring 27 K 6 M, bearing Khasra No. 390 situate at Village Raipur, near Nai Basti, Jammu for use and occupation and for all purposes of carrying on the activities of the Association in the manner the Association decides.

That the possession of the land in question has been handed over to the party of 2nd part and nominal rent of Rs. 80/- per kanal/per year has been fixed. However, the party of 1st part shall be free to get the land vacated whenever the same is required only for irrigation purposes and in that eventuality the party of 2nd part shall have no objection to hand over the possession to the party of 1st part which has been agreed to mutually by both the parties.

That it is hereby mutually covenanted and agreed to by both the parties that any successor of any party shall be bound by the present agreement and shall continue to abide by the same. The terms and conditions can be changed by mutual consent of both the parties or use of the land can be changed only after written consent of both the parties is obtained and issuing written corrigendum to the present agreement."

Post the execution of the agreement dated 25.10.1991, according to the stand of the petitioner, Sukhdev Singh, out of the total land allotted in his favour, he could take possession of only three kanals of land, while the rest which formed a major chunk was alleged to be encroached. It is alleged that even the Municipality had encroached upon a part of the land in question and had raised construction by way of shops thereupon. It is alleged that based upon the rights created as per the agreement, the irrigation department was approached with a view to prevent the Municipality to stop the construction. In this background, a petition bearing OWP No. 1208/1991 was filed.

The aforesaid writ petition came to be disposed of by judgment and order dated 28.09.1992 which read as under:

"I have heard the learned counsel for the parties.

In this case the dispute is in regard to land measuring 27 kanals and 6 marlas comprised in Khasra No. 390 situated in village Raipur near Nai Basti Jammu which has been allegedly allotted by the Irrigation Department to the petitioner‟s Association and for which agreement deed has also been executed.

According to the respondents, the land belongs to the Municipal Department and on some portion of it, shops have already been constructed.

Considering all the aspects of the case particularly the fact that disputed questions of facts cannot gone into the writ petition. This petition is disposed of at this stage by issuing direction that the matter shall be considered afresh by the Chief Engineer Irrigation Department, who shall pass appropriate order regarding allotment of the land to the petitioner‟s Association, in which process Administrator Municipality be associated. Mr. Nanda points out that the shops already constructed are required to be auctioned and in this respect the Municipality can auction the shops in accordance with the rules."

The Chief Engineer acted on the directions passed in OWP No. 1208 of 1991, passed an order dated 14.09.1993 whereby he rescinded the lease agreement drawn in regard to the land in question. Subsequently, by virtue of order dated 18.09.1993, the Chief Engineer also cancelled the order of allotment issued by the Assistant Executive Engineer (petitioner in OW104 no. 82/2013), which were sought to be quashed by the Association by way of SWP No. 1410/1993.

The aforesaid writ petition was filed challenging the orders dated 14.09.1993 and 18.09.1993 issued by the Chief Engineer, which came to be dismissed by the writ Court holding that the Association could not derive any right of allotment on the State land on the basis of an agreement executed by the Assistant Executive Engineer, inasmuch as, he had no authority to enter into any agreement for conveyance or allotment of State land for and on behalf of the Governor of the State.

An LPA was preferred against the dismissal of appellants' Writ petition SWP No. 1410/1993. The Division Bench considering the fact that the State land had been encroached, directed the impleadment of all those persons, who had raised constructions thereupon and also directed the concerned official agencies to ensure that no encroachment was made over the land in question. During the course of consideration of the appeal, the Bench also directed the registration of a police case against those who were responsible for grabbing the State land. An FIR bearing No. 48 of 1994 was, accordingly, registered by the Vigilance Organization, Jammu. It appears that the Vigilance Organization after making investigation in FIR No. 48 of 1999, recommended the closure of the case on the ground that the allotees were not in possession of the land and that the writ petition had been dismissed by the High Court. The Division Bench, however, taking notice of the perfunctory manner in which the case had been recommended for closure, expressed its dissatisfaction with the manner in which the Vigilance Organization had proceeded without in the least carrying out the requisite investigation in the case.

What was observed by the Hon'ble Division Bench is as under:

"12. Before parting, we would, however, like to observe that Vigilance Organization has closed FIR No. 48 of 1994 in a perfunctory manner proceeding on the premise that as appellants‟ writ petition had been dismissed by the Court and they were not in possession of the land, so the police case deserved to be closed. We are not satisfied with the manner in which Vigilance Organization has proceeded to closed FIR No. 48/94 without carrying out requisite investigation in the case. We, however, stop short of saying more on it for it is the province of the competent court seized of the final police report to dwell on the matter and on the further course of action to be taken in the matter. The file received from the concerned court shall be sent back to it to deal with it in accordance with law."

In addition to this, the Division Bench was pleased to dismiss the appeal by holding that no officer of the State Government unless authorized in that behalf could execute any document dealing with the property of the State and further that the agreement executed by the Assistant Executive Engineer with the appellant's Association did not confer any right on the appellant's Association to claim allotment of the State land. It further held that the order passed by the Chief Engineer Irrigation and Flood Control Department in rescinding the agreement and cancelling the allotment made by the Assistant Executive Engineer was perfectly legal, inasmuch as the same was void abnitio and without jurisdiction.

Finally the investigation was carried to its logical conclusion resulting in the presentation of a charge sheet before the Court of learned Special Judge, Anti Corruption, Jammu. By virtue of orders impugned dated 18.07.2013, charges have been framed against the petitioners.

Mr. K. S. Johal, learned Sr. Counsel appearing for the petitioner in OWP No. 73/2018 challenged the order impugned inter alia on the following grounds:

i. That order impugned was a non speaking order.

ii. That the Court below had proceeded to frame the charges in a mechanical manner, inasmuch as, the Association was not in possession of the allotted land and there had been encroachments on spot, some of which have been regularized by the Government itself in favour of the occupants.

iii. That there was no material on record which would justify the framing of the charge under Sections 5(1)(d) and 5(2) of the Act of 2006.

iv. That the Court below had failed to appreciate that every act of an authority acting without jurisdiction or over stepping of jurisdiction could not be led to a presumption of commission of a penal offence.

v. That there was no material on record which could justify the ingredients of mensrea, motive, knowledge or bestowing of any benefit in an illegal manner etcetera without which the charges framed cannot be sustained.

vi. That a bonafide action of allotment of State land belonging to the Irrigation Department could not necessarily lead to a presumption of conferment of an undue benefit which would bring it within the purview of Sections 5(1)(d) and 5(2) of the Act of 2006.

Mr. Vikas Mangotra, learned counsel appearing for the petitioner in OW104 No. 82/2013 in addition to adopting the arguments of Mr. Johal further urged that the allotment of allotment made in favour of the association could at behest be categorized as a bonafide mistake and did not have the attributes of a criminal offence much less under sections 5(1) (d) and 5(2) of the Act of 2006. It was urged that the Association was not in possession of the allotted land and that there were encroachments on spot which had been subsequently regularized in favour of the encroachers, therefore, there was no basis for the trial court to pass the order impugned.

Heard learned counsel for the parties.

A lot of emphasis was laid by the learned counsel for the petitioners during the course of arguments that there was no actual benefit conferred upon the Engineering Association as they were not in possession of the allotted land because there were encroachments on spot and, therefore, it was urged that there was neither any prejudice to the interest of the State nor any benefit conferred upon anybody. It was, thus, urged that the ingredients of Section 5(1)(d) of the Act of 2006 were not fulfilled.

The assertion that the petitioner's Engineering Association was not given possession of the land, is factually incorrect as can be seen on a reading of paragraph 3 of the writ petition (OWP No. 73/2018) which is reproduced hereunder:

"3. That though the major chunk of the land was under the encroachers, the association of which the petitioner was General Secretary could take only three kanals of land and regarding the encroached land, the association took up the matter with the department. The department assured the association that the steps would be taken to remove the encroachers........"

Not only this, in paragraph 2 even the agreement dated 25.10.1991 executed states as under:

"2. That the possession of the land in question has been handed over to the party of 2nd part and nominal rent of Rs. 80/- per kanal/per year has been fixed. However, the party of 1st part shall be free to get the land vacated whenever the same is required only for irrigation purposes and in that eventuality the party of 2nd part shall have no objection to hand over the possession to the party of 1st part which has been agreed to mutually by both the parties."

While it may be true that the entire chunk of approximately 27 kanals of land might not have been handed over to the association on account of the some encroachments, nevertheless, it cannot be denied that the possession was, in fact, handed over in regard to a portion of the land which was the subject matter of allotment in favour of the Association.

With a view to test the order impugned dated 18.07.2013, it becomes necessary to identify the essential ingredients of Section 5(1)(d) of the Prevention of Corruption Act, 2006, which reads as under:

"5. Criminal Misconduct

(1) A public servant is said to commit the offence of Criminal misconduct-

(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any valuable thing or pecuniary advantage; or

The essential ingredients of this offence, therefore, are as follows:

That the accused must have used corrupt or illegal means.

That he must have abused his position as a public servant.

That he obtains for himself or for any other person any „valuable thing‟ or „pecuniary advantage‟.

Hon'ble Justice S. Murtaza Fazl Ali in Shanti Swarup Malhotra v. State of J&K, 1973 JKLR 608 held as under:

"Analyzing thus the decisions of the Supreme Court, the position that emerges is that ..........an offence punishable under Section 5(2) of the Act must contain the following ingredients:

"That the accused should be a public servant.

That he should use corrupt or illegal means or otherwise abuse his position as a public servant.

That he should have obtained a valuable thing or pecuniary advantage either for himself or for any other person.

The language of section 5(2) of the State Act is the same as that of the Indian Act.

It is therefore, clear that it is not at all necessary for the prosecution to prove that the public servant concerned had obtained an advantage for himself also before he could be convicted under this Section. All that is necessary is that the public servant must misuse or abuse his position and thereby either obtain pecuniary advantage for himself or for any other person without obtaining any advantage for himself.

The other question that arises is as to what is the meaning of the words „misuse of his position‟. These words obviously mean that if the officer does not act as a prudent man, discards all the norms and statutory rules and is prepared to accommodate, a third party and obtains benefit for him, this will certainly amount to a misuse of his powers, and if by his conduct he causes loss of Government revenues, his conduct will be a dishonest one."

In Amit Kapoor versus Ramesh Chander and another, (2012) 9 Supreme Court Cases 460, the apex Court crystallized the scope of powers exercisable by Courts under its revisional and inherent jurisdiction under Sections 397 and 482 of the code of Criminal Procedure and held:

"27. 1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. ........

27.7. .........

27.8. ..........

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance to the requirements of the offence."

The ratio of aforementioned judgment was followed in State of Rajasthan v. Fatehkaran Mehdu, AIR 2017 Supreme Court 796.

Testing the facts of the present case on the touchstone of the principles laid down hereinabove, without commenting upon correctness or otherwise of the allegations made against the petitioners, in my opinion, the allegations cannot be said to be so patently absurd and inherently improbable as not to constitute a criminal offence under Sections 5(1) and 5(2) of the Act of 2006.

Needless to say that no less than a Division Bench of this Court had returned a finding that there was no authority vested in the officers to either convey or allot the State land much less was there any authority in the Assistant Executive Engineer to enter into an agreement for and on behalf of the Governor of the State to convey or allot the State land, which could be conveyed or dealt with only after following the procedure prescribed in that regard.

In Kanti Bhadra Shah and anr. v. The State of West Bengal, (2001)1 SCC 722, the apex Court held that there was no legal requirement that the trial court while framing the PARAMJEET SINGH 2020.01.27 10:23

I attest to the accuracy and integrity of this document charge should pass an order specifying the reasons for framing such a charge. It was also held that trial Court need not write a detailed order and that framing of charge itself was prima facie order that the trial judge had formed an opinion upon considering the police report and other documents that there were grounds for presuming that the accused had committed the offence concerned.

The argument that the order was a non-speaking order and was required to be set aside on that ground alone is, therefore, clearly unsustainable when tested on the touchstone of the aforementioned judgment.

In the light of the aforementioned findings, it would be difficult for this Court to hold that in faming charge against the petitioners, the Court below had committed any illegality or perversity in law. In my opinion, there was material before the Court below based upon which an opinion could have been framed as was done by the Court below in framing the charge.

For the reasons stated above, these petitions are found to be without any merit and are, accordingly, dismissed along with connected CM(s).

(Dhiraj Singh Thakur)

Judge

This Judgment is being pronounced by me in terms of Rule 138(3) of the Jammu and Kashmir High Court Rules, 1999.