Excelsior Correspondent
JAMMU, Sept 3: High Court has quashed FIR registered by Anti-Corruption Bureau (ACB) against Bashir Ahmad, the then Executive Engineer, Nisar Ahmad, the then Assistant Executive Engineer and Abdul Rehman Gojri, the then JE for misappropriation of funds.
Justice Vinod Chatterji Koul observed, “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”, adding “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 these facts and circumstances of the case, it cannot lie in the mouth of Senior AAG that the case of petitioner does not fall in any of the circumstances in which this petition under Section 482 CrPC could be pressed into service to quash impugned FIR”.
The case set up by petitioner Nissar Ahmed Bhat was 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.
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 Department, 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.
About a year or so thereafter, ACB, on some complaint, initiated a Preliminary Enquiry 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 further observed, “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. It needs also to be borne in mind that in conclusion/direction 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”, High Court said and quashed the FIR.
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