STATE TIMES NEWS
JAMMU: Justice Sanjay Dhar of Jammu & Kashmir and Ladakh High Court has quashed FIR to the extent of petitioner, Indra Thakur (KAS) in alleged fake RBA Certificate case. The petitioner challenged 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, ACB Jammu).
As per impugned FIR, on basis of a complaint against officers/officials of J&K PSC regarding concealment of facts and inclusion of fake RBA/OSC/ALC certificates by most of the selected KAS candidates, an investigation was conducted by Vigilance Organization, Jammu. After verification, it was revealed that RBA certificate in favour of petitioner 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 aforesaid 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 petitioner has, on the basis of aforesaid RBA certificate, got selected in KAS 2001 batch thereby depriving deserving candidates of their right. As per aforesaid verification, offence under Section 5(2) of the Act of 2006 stands disclosed against the then Tehsildar Banihal Jitender Mishra and others.
The petitioner has challenged impugned FIR by contending that she was a law graduate and after, completing her Degree in Law, she got herself enrolled as an Advocate in terms of Notification No. 622 dated 11.02.2009 issued by the High Court of Jammu & Kashmir. It is further averred that petitioner started her practice as an Advocate in the office of Adv Ved Raj Wazir and was getting independent salary of Rs 2500 per month. It is averred that the moment the petitioner joined the profession as an Advocate, she ceased to be dependent upon her father for the purpose of the Act of 2004 and the Rules framed there under. It is contended that, though the annual income of her father exceeded the ceiling limit prescribed under Section 2(o) of the 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. On this ground, it is urged that the then Tehsildar concerned, while issuing the RBA certificate in favour of the petitioner, has not violated any statute or rule. It is further submitted that the petitioner has not suppressed any facts from the relevant authorities, nor has she obtained the certificate by any deceitful means. Thus, it cannot be stated that then Tehsildar concerned, while issuing the RBA certificate in her favour, has misused or abused his official position.
Justice Sanjay Dhar after hearing Sr Adv Sunil Sethi with Adv Sonika Thakur for the petitioner whereas AAG Raman Sharma for 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,” the Court observed.
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. “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,” the Court observed, adding 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 the 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.
