Mohabat Ali Khan V. UT of JK and Ors.

WP(C)/1619/2021

AI Insights

In this case, Mohabat Ali Khan, the petitioner, sought to quash an FIR registered against him under the J&K Prevention of Corruption Act and the Ranbir Penal Code. The FIR alleged that the petitioner, a former government employee who had retired and engaged in business, had accumulated disproportionate assets. The petitioner contested the FIR, arguing that it did not disclose any commission of offense and that the properties mentioned were owned by others. The court, however, found that the allegations in the FIR were sufficient to warrant an investigation and dismissed the petition, citing the need to allow the investigative process to unfold.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 800282 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 20-08-2021
• Assessment Year: misc
• Other Referred Cases: Kanwarjit Singh Kakkar vs. State of Punjab and Anr.
• Laws Referred To: J&K Prevention of Corruption Act Svt. 2006, Ranbir Penal Code
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: B A DAR
• Assessee Lawyers: MOHSIN QADRI; MOHAMMAD TAHSEEN
• Keywords: Certiorari; Certiorari; Criminal Misconduct; Disproportionate assets; Mandamus; Quashing FIR
• Section: 5(2); 168; 5(1)(e)

Judgement Text

" Serial No. 155 Suppl. HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) No. 1619/2021 Mohabat Ali Khan ….. Petitioner(s) Through: - Mr. Mohsin Qadri, Sr. Advocate with Mr. Mohammad Tahseen, Advocate V/s UT of JK and Ors. ….. Respondent(s) Through: - Mr. B. A. Dar, Sr. AAG Inspector Irfan Ul Hassan (IO) Anti-Corruption Bureau, Baramulla, present in person. CORAM: Hon’ble Mr Justice Ali Mohammad Magrey, Judge (ORDER) 20.08.2021 1. In the instant petition, petitioner seeks the following reliefs. a. Writ, order or direction in the nature of certiorari quashing the impugned FIR No. 08.2021on 26.07.2021 under Section 5(1)(e) read with 5(2) of J&K Prevention of Corruption Act Svt. 2006 read with Section 168 Ranbir Penal Code. b. By a writ of mandamus, commanding the respondents not to cause any kind of interference into the business activities as well as the properties of the petitioner in any manner.” Brief facts:- 2. Petitioner claims to have resigned from the post of Junior Assistant in the Rural Development Department, Kupwara, in 2017, which, as stated, has been accepted by the respondents on 15.01.2018 and thereafter he is doing his business and trading, paying his regular income taxes, but while doing so, he is stated to be implicated in FIR No. 08/2021 on 26.07.2021 under Section 5 (1) (e) read with 5 (2) of J&K Prevention of Corruption Act Svt 2006 read with Section 168 RPC. 3. The petitioner challenges the registration of said FIR No. 08/2021 and subsequent investigation on the grounds detailed out in the petition, with particular reference that the very context/reading of the FIR does not disclose the commission of offence under Section 5 (1) (e) read with 5 (2) of J&K Prevention of Corruption Act Svt 2006 read with Section 168 RPC registered on 26.07.2021 by Anti- Corruption Bureau. Elaborating the point so raised, learned senior counsel has invited the attention of the Court to the language used in the FIR, which, as stated, does not meet the ingredients for commission of aforesaid offences. It is stated that the FIR does reveal that the petitioner has retired from service and has indulged in business activities while in active Government Service and, has, therefore, accumulate disproportionate assets beyond his known source of income in the shape of moveable/immoveable properties on his own name as well as in the name of his family members, the description of which is given in the FIR. 4. Learned senior counsel submits that the property mentioned in the FIR does not belong to the petitioner and is owned by different entities. He further submits that the petitioner admits having indulged in business activities along with family members after his retirement, which does not constitute any offence. Learned senior counsel submits that the allegations made in the FIR are misconduct on the first count, as the petitioner is not a public servant and has retired three years ago from the Government employment and is not indulged in any business activities during his service. Learned senior counsel further submits that the contents of FIR are false, frivolous and property mentioned in FIR belongs to some third persons, which are not even remotely connected or related to the petitioner in any manner as are evident from the documents placed on record. The petitioner has disputed the very basis of the FIR. 5. Learned senior counsel further submits that the properties, as shown accumulated, are from the very lawful business as the petitioner is a contractor and paid income tax and other related taxes to the Government. He further submits that the petitioner is not in any way involved in the commission of offences as detailed out in the impugned FIR. Learned senior counsel further submits that Section 5 of the Prevention of Corruption Act making reference to criminal misconduct is not at all made out from the contents of the FIR. Learned senior counsel has while reiterating the submissions referred to and relied upon the Judgment titled Kanwarjit Singh Kakkar vs. State of Punjab and Anr., reported as 2011 Legal Eagle (SC) 405. 6. Heard learned counsel for the petitioner, perused the records and considered the matter. 7. Since the quashment of FIR registered against the petitioner in the Anti-Corruption Bureau, Baramulla, is concerned, it is profitable that before going to merits of the case, the question is as to whether the FIR containing allegations which set the police in motion, can be quashed at the threshold stage? The answer has to be in the negative, for, the remedy under Section 482 Cr. P. C can be invoked/pressed into service only in the following circumstances: “(i) to pass orders in order to give effect to an order passed under Cr.PC (ii) to prevent abuse of process of Court (iii) to secure the ends of justice: and (iv) to prevent mis-carriage of justice”. 8. In the instant case, keeping in view the allegations contained in the FIR, it can by no stretch of imagination be said that the case of petitioner falls within the ambit/contours of section 482 Cr.PC as enumerated above. The Apex Court in the cases reported AIR 1960 SC 866, AIR 1964 SC 01, AIR 1972 SC 484, AIR 1974 SC 1146, AIR 1977 SC 1489, AIR 1977 SC 2229, AIR 1980 SC 326, AIR 1989 SC 01, AIR 1990 SC 494, AIR 1991 SC 1260, AIR 1992 SC 064, AIR 1992 SC 892, AIR 1996 SC 309, AIR 1996 SC 2983, AIR 1999 SC 3596, AIR 1999 SC 1044, AIR 1999 SC 1216, AIR 2002 SC 671, AIR 2004 SC 3967, AIR 2005 SC 3212, SLJ 2005 VOL-I 118, 2008 AIR SCW 1003, 2008 AIR SCW 1993, 2008 AIR SCW 1998, 2008 AIR SCW 4614, 2008 AIR SCW 7680, 2008 AIR SCW 2778, AIR 2010 SC 201 has discussed the scope of Section 561-A Cr.PC corresponding to Section 482 Cr.PC of Central Code and has laid down the following tests: “ a. Where the allegations made in the first information report or the complaint even if are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. b. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. c. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. d. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of Magistrate as contemplated under Section 155(2) of the Code. e. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. f. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party: g. Where a criminal proceeding is manifestly attended with malafide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 9. Applying the tests laid down, it can be safely said that the entire matter isat its infancy stage and does not fall within the four corners of the tests laid down. 10. Apex Court also held that power is to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of appeal or revision. It has also laid down the parameters and guidelines in cases titled as “K.L.E Society & ors v. Siddalingesh reported in 2008 AIR SCW 1993; A.P Vs Bojjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano Vs State of Uttar Pradesh reported in 2008 AIR SCW 1998”. 11. This Court has only to ascertain whether the allegations made in the FIR do disclose or do not disclose the commission of offences, if it does, then it cannot be quashed at its thresh-hold stage. It is not proper to scuttle away the investigation at its thresh-hold stage, if FIR discloses the commission of offences, High Court should not interfere with the investigation which would amount to stalling the investigation and jurisdiction of statutory authorities to exercise powers in accordance with the provisions of criminal Code. 12. Apex Court in AIR 2004 SC 3967, AIR 1972 SC 484, AIR 1974 SC 1446, AIR 1977 SC 2229, AIR 1989 SC 01, has laid down the same principle. It is apt to reproduce para 10, 13, 14, 15, 17 & 19 out of the judgment titled as Som Mittal Vs Govt. of Karnataka reported in 2008 AIR SCW 1003 herein: “10. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly with circumspection and in rarest of rare cases. Exercise of inherent power under section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice. 13. In State of Bihar v. J.A.C Saldanha (1980) 1 SCC 554 this Court pointed out at SCC P. 574: The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more. 14. In Hazari Lal Gupta v Rameshwar Prasad (1972) 1 SCC 452 this Court at SCC P. 455 pointed out: In exercising jurisdiction under section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code. 15. In Jehan Singh vs Delhi Administration (1974) 4 SCC 522 the application filed by the accused under section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie the allegations in the FIR if assumed to be correct, constitute a cognizable offence. 17. In State of Bihar vs Murad Ali Khan (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. 19. We may observe here that despite this Court consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impressible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold.” 13. While keeping in view the scope of section 482 Cr.PC the Court should refrain from making prima facie decision at interlocutory stage when entire facts of the case are incomplete, hazy and more so, when material evidence is yet to be collected and issues involved could not be seen in their true perspective. 14. The Judgment referred to and relied upon by the learned senior counsel appearing for the petitioner is factually distinguishable, therefore, is no applicable to the present case. 15. Prima facie it appears that the allegations contained in the FIR relate to the offences which are cognizable and non-cognizable, warrant investigation. 16. In view of the facts and circumstances and law quoted herein above, this petition has no merit, therefore, dismissed. (Ali Mohammad Magrey) Judge SRINAGAR 20.08.2021 “Mohammad Yasin Dar” i. Whether the Judgment is reportable? Yes/No. I. Whether the Judgment is speaking? Yes/No. MOHAMMAD YASIN DAR 2021.08.21 11:58 I attest to the accuracy and integrity of this document "