‘Facts of each case have to be taken into consideration’
Says it is ACB prerogative to choose method of verification
Mohinder Verma
JAMMU, Sept 25: The High Court of Jammu & Kashmir and Ladakh has categorically stated that exoneration in departmental proceedings would not always lead to quashing of criminal charges relating to same allegations and the facts and circumstances of each case have to be taken into consideration. Moreover, it has held that it is the discretion of Anti-Corruption Bureau (ACB) to choose the mode and method of verification of the complaint relating to corruption.
The High Court was dealing with writ petition challenging FIR No 5 of 2010 for offences under Sections 120-B, 167-A, 420-RPC read with Section 5(1)(d) and 5(2) of Jammu and Kashmir Prevention of Corruption Act registered with Police Station Vigilance Organization Jammu against the engineers of Public Health Engineering (PHE) Department.
As per the contents of the impugned FIR, a Joint Surprise Check (JSC) was conducted by the Vigilance Organization (now Anti-Corruption Bureau) into the allegations of construction of substandard overhead tank at Dok Paloura, Jammu during the period 2006 to 2009 which is stated to have collapsed in the month of June 2009.
It is mentioned in the FIR that the then Executive Engineer in league with the then Assistant Executive Engineer, the then Junior Engineer PHE Sub Division No.1 and contractor Janak Raj Gupta by abusing their official positions, had authorized payment in respect of the contract for execution of work that was not carried out in accordance with the contract thereby causing huge loss to the State exchequer.
The petitioners challenged the impugned FIR on the ground that a departmental enquiry was conducted into the same allegations in which the petitioners have been exonerated and no culpability on their part was found. It was submitted that petitioners cannot be roped in as co-accused for no fault of theirs when the whole fault lies upon the shoulders of the contractor.
It was further contended that before registering the impugned FIR, the Vigilance Organization has not conducted any preliminary verification into the allegations and without undertaking such an exercise, it was not open to the Vigilance Organization to register the impugned FIR. “Moreover, the impugned FIR has been lodged after a delay of eight and a half months and there is no explanation on the part of the Vigilance Organization for this delay”, the petitioners submitted.
After hearing the arguments of Senior Advocate M K Bhardwaj with Advocates Gagan Kohli and C S Anand appearing for the petitioners and Additional Advocate General Raman Sharma and referring several judgments of the Supreme Court, Justice Sanjay Dhar said, “from the analysis of law on the subject, it is clear that when the allegations in the departmental proceedings as well as in criminal proceedings are identical and a person has been exonerated in the departmental proceedings on merits, the trial of the person in the criminal case would be an abuse of process of court”.
“However, it has to be kept in mind that the result of the departmental proceedings should have been accepted by the competent authority and the same should have acquired finality before determining whether the criminal proceedings can be quashed”, High Court said, adding “before applying the principle that exoneration in a department proceedings would lead to quashing of criminal charges relating to the same allegations, the facts and circumstances of each case have to be taken into consideration”.
“If we have a look at the enquiry report that has been annexed by the respondents to their reply, it is revealed that it is not a case of clear cut exoneration of petitioners on merits”, Justice Dhar said, adding “the committee constituted by the Government to conduct inquiry has observed that the field staff has failed to impose their authority as a result of which the contractor conducted himself in a manner which was not in conformity with the conditions laid down in the contract. Moreover, the committee has concluded that the field staff cannot be absolved of their responsibilities as such they have not been given clean chit but their roles have come under scanner”.
About the contentions of the counsels for the petitioner that there has been no preliminary verification before registering the impugned FIR and that there has been a delay of more than eight months in registering the FIR, High Court pointed towards the Clauses of Vigilance Manual 2008 and said, “vide Government Order No. GAD-12 dated 26.05.2003, the State Vigilance Organization has been authorized to conduct surprise check in association with a representative of the Government Department where check is to be conducted. So, it is not that in every case, preliminary enquiry has to be conducted by the Vigilance Organization before registering an FIR”.
“It is up to the Vigilance Organization to choose the mode and method of verification of the compliant. It can be by secret verification or by open verification or joint surprise check or preliminary enquiry. Even FIR can be registered by the Vigilance Organization without adopting any of these methods”, Justice Dhar said.
He further said, “in the cases relating to corruption by the public servants, before registering an FIR, the concerned authority has to examine the record available in the relevant department and for the this purpose, record is needed to be collected from different offices. So by very nature of the exercise, which is required to be undertaken in such cases, some amount of time is likely to be consumed”.
“Because of all these reasons, I do not find any reason to interfere with the investigation of the case at this stage. The petition is, therefore, dismissed. Interim order shall stand vacated. The investigating agency shall be free to take an independent decision on the basis of the material that may be collected by it during investigation of the case”, Justice Dhar concluded.
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