Perverse order cannot fall within the definition PC Act: HC

16/04/2018

JAMMU, Apr 15: While quashing FIR registered by the Vigilance in the year 1986, Justice MK Hanjura of J&K High Court after hearing Adv Abhinab Sharma appearing for the then Assistant Custodian Jammu (Former MLC PDP) Asgar Ali, observed that wrong/incorrect or even an illegal or perverse order cannot fall within the definition of an offence under the provisions of the Prevention of Corruption Act merely because some procedural irregularities are noticed by the court. No finality is attached to an order passed by the Assistant Custodian. It can be challenged before the authority designated under the Act as has been done in the instant case. The power to be exercised by the Assistant Custodian is a power vested with him under a statute and under the colour of his office he exercises the power of a civil court. Therefore, the action of the petitioner in passing an order under Section 8 of the Act would not fall within the purview of Section 5(1)(d) of Prevention of Corruption Act. An order passed by the civil court which is bad or perverse would not per-se mean that its maker can be prosecuted under the provisions of the Prevention of Corruption Act. In such a case the scheme as provided and postulated under the Act has to be followed by the aggrieved person.
According to the case petitioner Asgar Ali then Assistant Custodian Jammu former MLC PDP sought quashment of FIR are that one Abdul Majid S/o Abdul Aziz R/o Chak Mohd. Yar Tehsil R.S.Pura, Jammu filed an application under Section 8 of the Evacuees' (Administration of Property) Act, 2006, (for brevity known as "The Act") on 20.02.1981 before the then Tehsildar (Assistant Custodian), Jammu namely, Mohd. Aslam, seeking restoration of the land situate at village Deeli, Tehsil Jammu, comprising Survey Nos.285, 286/1, 287 and 372 measuring 47 Kanals 14 Marlas and under KhasraNo.283, 284, 286/2 and 373 measuring 47 Kanals 4 Marlas belonging to one Allah Ditta S/o Noor Mohd and Karamfllahi S/o Fazal Din, on the ground that he is their sole heir. Since the application was filed after a period of 35 years approximately from the date, the evacuees had left the place, therefore, the Assistant Custodian made an endorsement on the said application to that effect. However, the then Custodian proceeded ahead in the said application and issued a notice inviting objections from the general public which was published in a newspaper and, thereafter, the Court recorded the statements of the witnesses produced by the applicant in support of his application seeking restoration of the land. The said application came to be dismissed for non-prosecution and was consigned to records. Subsequently, the same was restored to its original number by the then Custodian namely Meharban Singh posted as Tehsildar, Agrarian Reforms, Jammu, at that moment. In the year 1983, the petitioner came to be posted as Tehsildar (Assistant Custodian) Jammu, and the said application was ripe for final determination at that juncture. The petitioner decided the said application vide order dated 25.11.1983 which directed that the land be restored in favour of the applicant namely, Abdul Majid, inasmuch as no one else had opposed the said application or laid any claim over the said property. The petitioner passed the said order on the basis of the material available on the record. However, the Police authorities of Police Station Vigilance Organization, Jammu registered an FIR bearing No.9 of the year 1986 for the commission of an offence under Section 5(1)(d) of the Prevention of Corruption Act alleging therein that the petitioner had hatched a criminal conspiracy with the applicant namely, Abdul Majid, despite the fact that at a time when the application under Section 8 was filed, the petitioner was posted at Poonch and not in Jammu. The FIR was registered against the petitioner, the then Assistant Custodian- Mohd. Aslam Qureshi and the applicant namely, Abdul Majid. It is further contended that the order passed by the petitioner in the application of Abdul Majid was challenged by one Siraj-ud-Din before the Custodian General, J&K Government in a revision petition and during the pendency of the revision petition, the petitioner Siraj-ud-Din died and his daughter, namely, Sharifa Bibi was brought on record as his legal heir. However, fate had it for her that she too died during the pendency of the revision petition and despite that the Custodian General allowed the revision petition and quashed the order dated 25.11.1983 vide his judgment dated 23.04.2008. Abdul Majid preferred a revision before the Special Tribunal, Jammu in which he challenged the vires of the order dated 23.04.2008 of the Custodian General and the Special Tribunal Jammu stayed the operation of the order passed by the Custodian General. The petitioner has proceeded to state that the respondent No.2 contemplates to produce the challan against the petitioner and Abdul Majid as well and Mohd. Aslam has been dropped from the list of the accused.
Justice MK Hanjura after hearing Adv Abhinav Sharma appearing for the petitioner whereas Deputy AG Raman Sharma appearing for the VOJ observed that The power to be exercised by the Assistant Custodian is a power vested with him under a statute and under the colour of his office he exercises the power of a civil court. Therefore, the action of the petitioner in passing an order under Section 8 of the Act would not fall within the purview of Section 5(1)(d) of Prevention of Corruption Act. An order passed by the civil court which is bad or perverse would not per-se mean that its maker can be prosecuted under the provisions of the Prevention of Corruption Act. In such a case the scheme as provided and postulated under the Act has to be followed by the aggrieved person. With these observations, High Court quashed FIR NO 9/1986 registered by the Vigilance Organization Jammu against the petitioner for an offence punishable under Section 5(1)(d) of Prevention of Corruption Act is a sheer abuse of the process of law. JNF

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