‘Income of RBA certificate seeker, not parents need to be determined’
*Quashes ACB FIR for not disclosing cognizable offence
Mohinder Verma
JAMMU, Oct 18: High Court of Jammu & Kashmir and Ladakh has held that in the absence of any dishonest motive or intention on the part of public servant the criminal prosecution cannot be launched against him or her under the Prevention of Corruption Act and the court can exercise inherent power under Section 482 of the Code of Criminal Procedure (CrPC) to secure the ends of justice.
High Court was dealing with a petition challenging FIR No.16/2015 for offence under Section 5(2) of the J&K Prevention of Corruption Act, 2006 registered with Police Station, Vigilance Organization Jammu (now Anti-Corruption Bureau).
As per the impugned FIR, verification, on the basis of a complaint against the officers/officials of J&K PSC regarding the concealment of facts and inclusion of fake RBA/OSC/ALC certificates by most of the selected KAS candidates, was conducted by the Vigilance Organization, Jammu.
During the verification, it was revealed that RBA certificate in favour of the petitioner Indra Thakur has been issued in violation of the provisions of J&K Reservation Act 2004 inasmuch as, the annual income of father of the petitioner exceeded the prescribed ceiling limit and that the petitioner had not completed her entire school education from the local area.
It was found that the facts are reflected in the report of the concerned Patwari, but in spite of this, the then Tehsildar Banihal Jitender Mishra issued RBA certificate in favour of the petitioner in contravention of the provisions contained in the Act of 2004. It was also revealed that the petitioner has, on the basis of RBA certificate, got selected in KAS 2001 batch thereby depriving deserving candidates of their right. As per the verification, offence under Section 5(2) of the J&K Prevention of Corruption Act stands disclosed against the then Tehsildar Banihal and others.
The petitioner challenged the impugned FIR on the ground that though the annual income of her father exceeded the ceiling limit prescribed under Act of 2004 yet for the purpose of issuance of RBA certificate in favour of the petitioner, it is only her income which was to be taken into account and not that of his father, as the petitioner, at the relevant time, was gainfully employed.
After hearing counsels for the parties and analyzing the record, Justice Sanjay Dhar observed, “Rule 21 of Rules of 2005 provides that if the children of a person who, though a resident of backward area, have to move out of the area in connection with his employment, business or other professional or vocational reasons, are not residing in the said area, they will not be disentitled from claiming the benefit of being resident of backward area”.
“So far as the question of income ceiling is concerned, Clause (iii) of Rule 22 of the Rules of 2005 provides that if a person is not dependent upon his/her parents and is not living with them, for the purpose of determination of the income, it is his/her income which has to be taken into account and not that of his parents”, High Court said.
While pointing towards clarification issued by the Government of Jammu and Kashmir dated 14.11.2003 in respect of SRO 126 of 1994, the High Court said, “from a perusal of the clarification, it is clear that if a son or daughter of a person is employed or gainfully engaged and he or she applies for grant of a category certificate, it is his/her income which has to be taken into account for determination of the income and not that of his/her parents”.
“The petitioner was enrolled as an Advocate at the time of grant of RBA certificate in her favour, as such, it can be inferred that she was gainfully engaged at the relevant time. Thus, as per the relevant Statutes and the Rules, it is her income only and not that of her father that would be relevant for determining whether she is entitled to grant of RBA certificate”, the High Court said”.
Pointing towards the contentions of Additional Advocate General, Justice Sanjay Dhar said, “the question would arise whether criminal prosecution for offence under Section 5(2) of the J&K PC Act can be launched against a public servant only on the basis of erroneous interpretation of a statute/rule, particularly when neither there is any allegation in the FIR nor there is any material on record of the verification file to show that the competent authority has either adopted any corrupt means or obtained any pecuniary advantage for itself while issuing the certificate in question”.
Referring the Supreme Court judgment, Justice Sanjay Dhar said, “it is clear that dishonest intention is the gist of the offence under Section 5(1) (d) of J&K Prevention of Corruption Act punishable under Section 5(2) of the Act”, adding “unless it is shown that a public servant has, by corrupt or illegal means, abused his position, it cannot be stated that he has committed the offence of criminal misconduct”.
“In the instant case, the then Tehsildar concerned has, on the basis of a possible interpretation of the Statutes and the Rules, taken a view that the petitioner is entitled to grant of RBA certificate. Merely because another view relating to interpretation of these Rules and Statutes is possible, it cannot be stated that the then Tehsildar has committed the offence of criminal misconduct”, High Court said.
“In the absence of any dishonest motive or intention on the part of the issuing authority and in the absence of any material to show that the petitioner had connived with the competent authority, it cannot be stated that any offence is made out against the petitioner”, Justice Dhar said while quashing the FIR to the extent of the petitioner for not disclosing commission of any cognizable offence by the petitioner.
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