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| HC quashes FIR against petitioner in alleged fake RBA certificate case | | |
Early Times Report
Jammu, Oct 18: Justice Sanjay Dhar of Jammu & Kashmir and Ladakh High Court quashed the FIR to the extent of petitioner (Indra Thakur) KAS in alleged Fake RBA Certificate.
The petitioner has challenged FIR No. 16/2015 for offence under Section 5(2) of the J&K Prevention of Corruption Act, 2006 (for short ‘the Act of 2006’) registered with Police Station, Vigilance Organization, Jammu (Now, ACB Jammu).
Justice Sanjay Dhar after hearing Sr. Adv Sunil Sethi with Adv Sonika Thakur for the petitioner whereas AAG Raman Sharma for the ACB, observed that 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 said Act. 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 concerned has committed the offence of criminal misconduct while issuing the certificate in favour of the petitioner.
Justice Sanjay Dhar further observed that a bare perusal of Section 13(1)(d)(ii) of the P.C.Act would reveal that a public servant can be prosecuted under that provision, only if he has abused his position as public servant and obtained for himself or for any other person any valuable thing or pecuniary advantage.
There is absolutely no whisper in Annexure-I F.I.R that the petitioner obtained any valuable thing or pecuniary advantage by abusing his position as public servant. As noticed earlier, by virtue of the quasi judicial order passed by a public servant, if a party to the proceedings before the public servant had obtained any pecuniary advantage, it cannot be found that it was obtained by him as result of abuse of the official position of the public servant. The legislative intent is not to punish a public servant for any erroneous decision; but to punish him for corruption. Thus, to fall within the four corners of sub-clause (ii) of clause (d) of sub-section (1) of Section 13 of the P.C Act, the decision/conduct of the public servant must be dishonest amounting to corruption. Mens rea, the intention and/or knowledge of wrong doing, is an essential condition of the offence of criminal misconduct under Section 13(1)(d)(ii) of the P.C.Act. The presumption under Section 20 of the P.C Act does not apply to the offence under Section 13(1)(d)(ii) of that Act. it is clear that even if, it is assumed that the certificate in question has been issued in favour of the petitioner on the basis of a erroneous interpretation of relevant rules and the statutes, still then, 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. In fact, the material on record shows that the petitioner has not concealed any relevant fact from the Competent Authority. It is not a case where the applicant has obtained the certificate by resorting to suppression of relevant facts. The competent authority on the basis of full disclosure regarding residence and financial status of father of the petitioner, issued the certificate in favour of the petitioner by following the view which is definitely a possible view relating to interpretation of the relevant provisions of the Act and the Rules. If at all the Competent Authority has taken an erroneous view, its order is subject to correction in appeal or revision in terms of the provisions contained in Sections 17 and 18 of the Act of 2004. But this erroneous decision in the absence of any material to show dishonest intention on the part of the Competent Authority cannot be made the basis of criminal prosecution against the petitioner. It is pertinent to mention here that there is nothing on record to suggest that the certificate in question has been cancelled by the appellate or revisional authority, which goes on to show that the same has been validly issued by the Competent Authority. Court further observed that the Supreme Court in the case of State of Haryana and ors vs Bajan Lal and ors, , has clearly laid down that extraordinary power under Article 226 of the Constitution or inherent power under Section 482 of Cr.P.C can be exercised, either to prevent abuse of the process of any Court or otherwise to secure the ends of justice in a case where the allegations made in the FIR, even if, they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. The Court further observed that even in a case where allegations in the FIR and other materials, if any, accompanying the FIR does not disclose a cognizable offence, justifying an investigation by police officer under Section 156(1) of the Code, the Court can exercise its powers under Section 482 of Cr.P.C to quash the criminal proceedings.
The Court further observed that in the instant case as already noted, the contents of the impugned FIR and the material collected during verification of the case, do not disclose commission of any cognizable offence by the petitioner, as such, continuance of criminal proceedings against the petitioner would amount to abuse of process of law. With these observations, High Court allowed the petition and the impugned FIR to the extent of the petitioner is quashed. It is, however, made clear that this Court has not returned any finding as regards the validity of RBA certificate issued in favour of the petitioner. The issue has been examined only from the perspective whether or not offence of criminal misconduct is made out against the petitioner. JNF |
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