HC quashes Corruption FIR against Engineers

04/09/2021

Jammu, Sept 3: Justice Vinod Chatterji quashed FIR No 23/2020 registered by Anti-corruption Bureau Bashir Ahmad, the then Executive Engineer, Nisar Ahmad, the then Asstt. Executive Engineer, and Abdul Rehman Gojri, the then JE for misapporpiation of Funds.
While quashing the FIR, Justice Vinod Chatterji Koul observed that In the instant case, it is reiterated that the Vigilance Organization had not registered the FIR, obviously, because the information received had not disclosed a cognizable offence. However, the information had indicated the necessity for a preliminary inquiry, obviously, for the limited purpose of ascertaining as to whether a cognizable offence has been committed. Such preliminary enquiry was, admittedly, conducted which had ended in closing the source information / complaint on the basis of which the preliminary enquiry had been initiated. The legal inference, therefore, is that the Vigilance Organization came to the conclusion that no offence was made out. In fact, that was the report made by Senior Superintendent of Police, which was accepted by the Commissioner, Vigilance. In the backdrop of above facts and circumstances of the case, it cannot lie in the mouth of learned Sr. AAG that the case of petitioner does not fall in any of the circumstances in which this petition under Section 482 Cr. P. C. could be pressed into service to quash impugned FIR. Certainly, it is self-evident that the instant case falls under the first three categories identified by the Supreme Court in Bhajan Lal. Therefore, on those counts as well, impugned FIR deserves to be quashed.
The case set up by petitioner Nissar Ahmed Bhat is that he has retired on attaining the age of superannuation as Incharge Chief Engineer, PWD(R&B), on 30th June 2018 and at that time, neither there had been any criminal case registered or under investigation against him, nor had there been any departmental enquiry contemplated or pending against him. It is stated that in the year 1998, while petitioner was posted as Assistant Executive Engineer, PWD(R&B), Budgam, the Telecom Department intended to lay cables along the Humhama-Budgam and Budgam-Yechgam general roads, for which it had to dig the berms of the roads. The Telecom Depar-tment, in terms of the Rules, was asked to deposit restoration charges of the roads to the tune of Rs.1,44,500/- before undertaking the work, which the Department did. After cables were laid by Telecom Department, given the fact that these were general roads, with a view to ensuring safety of commuters and to avoid any vehicular accident/mishap and, thereby, avert human loss, they needed immediate repairs and restoration and, therefore, PWD (R&B) Division, Budgam, got restoration works done through contractors on emergency basis. It is averred that about a year or so thereafter, ACB, on some complaint, initiated a Preliminary Enquiry under PE No.C-02/2000 into these works done by the R&B Division Budgam. Since on enquiry by ACB, no case was found made out, the matter was closed way back in 2003. It was, however, submitted that it was left open to R&B Department to initiate departmental enquiry as regards irregularities against concerned officers/ officials. It is maintained that no enquiry was initiated against petitioner or, for that matter, against any officer or official and petitioner was promoted from time to time and he rose through ranks and was posted and working as Incharge Chief Engineer at the time of retirement.
Justice Vinod Chatterji Koul observed that it is seen that the offences are alleged to have been committed 22 years back, i.e., in the year 1998-99, while petitioner was posted as an Assistant Executive Engineer in R&B Division, Budgam. It is mentioned in FIR that a preliminary enquiry was conducted by ACB J&K on a source report that large scale bungling was committed by the officers/officials of R&B Division, Budgam, in connection with execution of some works. It is alleged in impugned FIR that the officers, named therein, including petitioner, drew lakhs of rupees during the year 1998-99 in connivance with concerned contractors and embezzled the same against unexecuted works or the works that had been already executed by Telecom Department. In FIR it is also made mention of that during the course of enquiry it was found that the road leading to Yechgam and Sheikhpora was damaged due to laying of cables by the Telecom Department and the damaged work was shown to be undertaken by R&B Division Budgam at a cost of Rs. 1,40,353/-in clear violation to codal formalities. The payments had been made against hand receipts and the works, too, had been executed without observing the codal formalities. Further, it had also been found that the amount was drawn through cheques bearing nos. A/2804247, A2/804249, A/2804250 and A/2804251 on the name of contractors, namely, Mohammad Hashim Raina S/o Abdul Samad Raina R/o Hassipora, Chadoora : Rs.35,750/-; Mukhtar Ahmad Bhat S/o Ali Mohammad Bhat R/o Eidgah: Rs.19,070/-; Javaid Ahmad Bhat S/o Abdul Aziz Bhat R/o Channapora: Rs.49,470/-; and Ali Mohammad Shah S/o Mohammad Sultan Shah R/o Pulwama: Rs.29,920/-. It was found that no NITs and other codal formalities were fulfilled, and one of the contractors, Mohammad Hashim, during the enquiry had deposed that he never executed any work through R&B Division Budgam, nor had he signed any document in this regard, and that his signatures purported to be on various documents were fictitious. It is further recorded in the FIR that the cheques through which the payments had been made were found credited in the account of one Ali Mohammad Shah who had passed away and the other two contractors, namely, Mukhtar Ahmad Bhat and Javaid Ahmad Bhat were found nonexistent. According to the FIR, by acting in this manner, the accused officers/officials of the R&B Division Budgam, in pursuance of a well-knit criminal conspiracy with each other, had prepared fictitious record for the repair of damage caused to the roads and misappropriated the amount of Rs.1,34,210 with consequent loss to the State exchequer.
Justice Vinod Chatterji Koul further observed that impugned FIR, on its glimpse, unequivocally unveils that the case has been decided and ordered to be reopened for reinvestigation and for filing of the challan for criminal offences against petitioner and others. Such a course is not permitted in law rather is barred by law. Reinvestigation portrays fresh investigation that is not permitted by law. Section 173(8) of the Code of Criminal Procedure, at the most, provides further investigation, not fresh investigation. The law in this behalf is not res Integra.
Justice Vinod Chatterji Koul further observed that It needs also to be borne in mind that in conclusion/Direction 120.7. of the Supreme Court judgment in Lalita Kumari, it has been laid down that while ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and, in any case, it should not exceed seven days. In the instant case, having regard to the fact that impugned FIR has been lodged after 18 years of preliminary enquiry, the rights of petitioner have been sought to be violated to the hilt. With these observations, High Court quashed the FIR No.23/2020 dated 17th November 2020, registered at Anti-Corruption Bureau, Kashmir, Srinagar.

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