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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Reserved on: 20.09.2023 Pronounced on: 19.12.2023
Case:- CRR No. 18/2011
The State of Jammu and Kashmir through The Central Bureau of Investigation, Anti Corruption Branch, Panama Chowk, Rail Head Complex, Jammu. …..Petitioner(s)
Through: Mrs. Monika Kohli, Advocate.
Rajesh Koul, S/o Sh. Bansi Lal Koul Sr. Tax Assistant Commissioner, Income Tax, Tax Plaza, Panama Chowk, Jammu.
.…. Respondent(s)
Through: Mr. P. N. Bhat, Advocate.
Case:- CRR No. 17/2011
The State of Jammu and Kashmir through The Central Bureau of Investigation, Anti Corruption Branch, Panama Chowk, Rail Head Complex, Jammu. …..Petitioner(s)
Through: Mrs. Monika Kohli, Advocate
Rajesh Koul, S/o Sh. Bansi Lal Koul Sr. Tax Assistant Commissioner, Income Tax, Tax Plaza, Panama Chowk, Jammu.
.…. Respondent(s)
Through: Mr. P. N. Bhat, Advocate.
2 CRR No. 18/2011 c/w CRR No. 17/2011 CRR No. 19/2011 CRR No. 20/2011
Case:- CRR No. 19/2011
The State of Jammu and Kashmir through The Central Bureau of Investigation, Anti Corruption Branch, Panama Chowk, Rail Head Complex, Jammu. …..Petitioner(s)
Through: Mrs. Monika Kohli, Advocate.
Mr. Madan Lal Dogra, (Receipt Clerk, ITO, Udhampur) S/o Sh. Mansa Ram R/o Bariyal, Udhampur.
.…. Respondent(s)
Through: Mr. P. N. Bhat, Advocate.
Case:- CRR No. 20/2011
The State of Jammu and Kashmir through The Central Bureau of Investigation, Anti Corruption Branch, Panama Chowk, Rail Head Complex, Jammu. ….. Petitioner(s)
Through: Mrs. Monika Kohli, Advocate.
Mr. Madan Lal Dogra, (Receipt Clerk, ITO, Udhampur) S/o Sh. Mansa Ram R/o Bariyal, Udhampur.
.…. Respondent(s)
Through: Mr. P. N. Bhat, Advocate.
Coram: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
There are four revision petitions under Sections 435 and 439 of the Jammu and Kashmir Code of Criminal Procedure Svt. 1989 (in short, ‘CrPC’) which came to be preferred by the
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Central Bureau of Investigation (in short ‘CBI’) through its ASP, CBI and Head, ACB, Jammu for the purpose of assailing four respective orders passed by the Court of learned Special Judge, Anti-Corruption, Jammu on respective files in all of which the discharge of the accused persons, namely, Rajesh Koul and Madan Lal Dogra has come to take place from the prosecution of alleged commission of offences under Sections 5(2) (d) of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006 read with Section 120-B/420/465/468 and 471 of the Ranbir Penal Code. 2. Criminal Revision No. 17 of 2011 is borne out of CBI presented Police Report/Challan No. 02 dated 26.12.2005, arising out of FIR No. 0042004A0005 of 2004, which came to be taken on file No. 100/Challan on 27.12.2005 by the court of Special Judge, Anti-Corruption, Jammu in which the accused No. 2 is the respondent-Rajesh Koul in the array of four accused persons. 3. In Police Report No. 2 of 2005 on file No. 100/Challan, the CBI, Jammu came to name the four accused persons, namely, Rajinder Dutt, Rajesh Koul (respondent herein), Mohd. Muneer Wani and Bashir Ahmed Dar as accused persons. 4. Criminal Revision No. 18 of 2011 is borne out of CBI presented Police Report/Challan No. 01 dated 26.12.2005, arising out of
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FIR No. 0042004A0005 of 2004, which came to be taken on file No. 99/Challan on 27.12.2005 by the court of Special Judge, Anti-Corruption, Jammu in which also the accused No. 2 is the respondent-Rajesh Koul in the array of four accused persons. 5. In Police Report No. 1 of 2005 on file No. 99/Challan of the Court of Special Judge, Anti Corruption Jammu, the CBI Jammu came forward with a Police Report/Challan against four accused persons, namely, Rajinder Dutt, Rajesh Koul (respondent herein), Mohd. Muneer Wani and Bashir Ahmed Dar. 6. Criminal Revision No. 19 of 2011 is borne out of CBI presented Police Report/Challan No. 04 dated 26.12.2005, arising out of FIR No. 0042004A0005 of 2004, which came to be taken on file No. 102/Challan on 29.12.2005 by the court of Special Judge, Anti-Corruption, Jammu in which also the accused No. 5 is the respondent-Madan Lal Dogra in the array of five accused persons. 7. In Police Report No. 4 of 26.12.2005 on file No. 102/Challan of the Court of Special Judge, Anti Corruption, Jammu, the CBI, Jammu came to name five accused persons, namely, Rajinder Dutt, Bashir Ahmed Dar, Abdul Rashid Bhatt, Mohd. Muneer Wani and Madan Lal Dogra (respondent herein).
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Criminal Revision No. 20 of 2011 is borne out of CBI presented Police Report/Challan No. 03 dated 26.12.2005 arising out of FIR No. 0042004A0005 of 2004 which came to be taken on file No. 101/Challan of 27.12.2005 by the court of Special Judge, Anti-Corruption, Jammu in which also the accused No. 4 is the respondent-Madan Lal Dogra in the array of four accused persons. 9. In Police Report No. 3 dated 26.12.2005 on file No. 101/Challan of the Court of Special Judge, Anti Corruption, Jammu, the CBI Jammu came to name the four accused persons, namely, Rajinder Dutt, Bashir Ahmed Dar, Mohd. Muneer Wani and Madan Lal Dogra (respondent herein) as accused persons. 10. Upon presentation of the said Police Reports/Challans, the court of Special Judge (Anti Corruption), Jammu came to undertake charge framing exercise in respective cases which resulted in discharge of the respondent-Rajesh Koul and the respondent-Madan Lal Dogra from suffering prosecution of offences under Section 5(2) (d) of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006 read with Section 120- B/420/465/468 and 471 of the Ranbir Penal Code. The discharge came to take place by virtue of respective order dated 06.12.2010.
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The Court of Special Judge (Anti Corruption), Jammu after having gone through the facts and circumstances presented by the CBI, Jammu on Police Reports No. 01 of 2005 and 02 of 2005 came to hold in the case of the respondent-Rajesh Koul that there is no evidence to show that he was aware about the fakeness of TDS certificate and, therefore, no criminal culpability can be fastened upon him in processing the refund claim which was sanctioned not by the respondent-Rajesh Koul but by another official who has not been named as an accused and as such, the accusation against the respondent- Rajesh Koul could not qualify to be an offence. 12. The Special Judge, Anti Corruption Jammu came to draw from the facts and circumstances obtaining on the police report that the respondent-Rajesh Koul is being pitted without any evidence to indicate that he wrote the address on the postal envelop which was bearing refund voucher meant to be delivered to address 22-Bakshi Nagar, Jammu. The address of 22-Bakshi Nagar, Jammu was mentioned because the same was the address referred in the refund voucher and, therefore, from this fact, nothing culpable could be said against the respondent-Rajesh Koul and, therefore, the Special Judge, Anti Corruption, Jammu came to hold that even if whatever is being alleged against the respondent-Rajesh Koul is taken to be correct still that would not constitute and qualify to be an
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offence against him as alleged by the CBI, Jammu and, therefore, came to observe that the respondent-Rajesh Koul in no manner used any illegal means or otherwise abused his official position or received any pecuniary advantage in any manner for himself or any other person so as to suffer accusation of offence under Section 5(2) (d) of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006 and also of the other offences alleged against him and, therefore, held him deserving to be discharged. 13. Further the court of Special Judge, Anti Corruption, Jammu with respect to the respondent- Rajesh Koul came to observe that from the facts and circumstances of the case, three allegations against the respondent-Rajesj Koul came out which are, first that he acted hastily and sought the confirmation of genuineness of TDS certificate on the very next date of its receipt in the income tax office, second he processed the refund claim and third he might have sent the refund voucher to the Assessee on the address which was not given in the refund claim form dealing with the said three accusations on the basis of which the CBI Jammu wanted to implicate the respondent-Rajesh Koul to face the trial for the alleged offences. 14. The court of Special Judge (Anti Corruption), Jammu dealt with those allegations to come up with observations that even
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if the respondent-Rajesh Koul is said to have acted with undue haste still that would not constitute any offence under any law as it is not an offence to deal with official business by acting swiftly. In this regard, the Special Judge, Anti Corruption Jammu refers to the fact that TDS certificate and refund claim were received in the income tax office on 19.03.2022 in response whereto the respondent-Rajesh Koul wrote a letter on 20.03.2002 to the Executive Engineer Irrigation Division Pampore for verification of the said TDS certificate and by that time of writing of letter, criminal culpability could not be read or inferred against the respondent-Rajesh Koul with respect to allegation of processing of the refund claim of the assessee. The same was said to have been done by the respondent-Rajesh Koul in discharge of his official duty. On the basis of the communication of the Executive Engineer, Pampore that TDS certificate was genuine and it was no part of the duty of the respondent-Rajesh Koul to first go and see the confirmation of genuineness of the said TDS certificate so received on his table from the end of the Executive Engineer. 15. The Court of Special Judge (Anti Corruption), Jammu came up with the finding drawn from the facts and circumstances that there was no evidence to show that the respondent-Rajesh Koul was aware of the TDS certificate being fake and still
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proceeding ahead to process the refund claim which was not sanctioned by him but was sanctioned by some other officer who was not named as an accused in the case and, therefore, even the said allegation against the respondent-Rajesh Koul did not attach any criminal culpability for him to suffer trial. 16. Likewise with respect to matter of discharging the respondent- Madan Lal Dogra from suffering prosecution for alleged commission of offences under Section 5(2) (d) of the Jammu and Kashmir Prevention of Corruption Act, Svt. 2006 read with Sections 120-B/420/465/468 and 471 of the Ranbir Penal Code, the court of Special Judge (Anti Corruption), Jammu came up with the similar line of reasoning drawn from the facts and circumstances as obtained in the case of the respondent-Rajesh Koul in connection with the two cases so put up against the respondent-Madan Lal Dogra as respective cases against the two followed identical script. 17. Thus, with the discharge of the respondent-Rajesh Koul and the respondent-Madan Lal Dogra, both of them being public servants, the remainder of the accused persons, being private individuals, were left to face the trial of the case against them for which the case was transmitted to the court of Chief Judicial Magistrate, Jammu being the designated court for CBI cases for further disposal under law leaving it for the said
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transferee court to take a call as to whether the remainder accused persons are to be charged for the trial. 18. In the backdrop of the fact that the discharge of the respondent-Rajesh Koul and the respondent-Madan Lal Dogra came to take place way back in the year 2010 and the pendency of these revision petitions lasted for more than twelve (12) years in running before disposal coming to take place in December, 2023, this Court is to take cognizance of the fact that twelve (12) years of life have gone by and even if for the sake of thought giving, this Court were to ponder upon setting aside the order of discharge of the respondent-Rajesh Koul and the respondent-Madan Lal Dogra so as to make them stand trial, that would be amounting to nothing but putting the clock twelve (12) years back and have the trial right from its very inception which would be a travesty of justice of its own kind. 19. This Court is conscious of the fact that this Court is not meaning to endorse that if the criminal revisions filed by the petitioners would have made a case for setting aside the discharge of the respondent-Rajesh Koul and the respondent- Madan Lal Dogra, still this Court would have hesitated in setting aside their discharge for the reason of intervening delay but the reality of the situation is that the CBI has come forward not with any plea amounting to answer to the pivotal
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points pressed into service by the Court of Special Judge (Anti Corruption), Jammu on the basis of which it came to reckon that there were no facts and circumstances amounting to criminal culpability of the respondent-Rajesh Koul and the respondent-Madan Lal Dogra in the case as set up by the CBI, Jammu. In fact the recitals in the revision petitions are as if in the estimate of CBI, Jammu, even if a public servant acting with due diligence of his/her duty would fall in an error/omission then that error and omission would be nothing but criminal culpability. 20. The CBI, Jammu, in its criminal revision, has nowhere come forward with a singular line reference as to which of the administrative provisions/procedures regarding the conduct of office by the respondent-Rajesh Koul and the respondent- Madan Lal Dogra were breached by them at their respective end as a result whereof they facilitated the main authors of the alleged offences to carry forward their criminal act attending the refund of the claim. If the CBI, Jammu is to be left to its way of thinking on the basis of which it implicated the respondent-Rajesh Koul and the respondent-Madan Lal Dogra then by the stretch of same way of thinking every superior official in the hierarchy above the respondent-Rajesh Koul and the respondent-Madan Lal Dogra ought to have been in the array of the accused in the case, as they too committed
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omission/default of due administrative supervision with respect to the file work carried out by the respondent-Rajesh Koul and the respondent-Madan Lal Dogra which was crime infested. 21. It is not the case of the CBI, Jammu that the respondent- Rajesh Koul and the respondent-Madan Lal Dogra authored the order/s which enabled the refund of the claim. In fact the said two respondents i.e., Rajesh Koul and Madan Lal Dogra processed the file for the refund orders to be passed by the superior officers concerned and as such if the respondent- Rajesh Koul and the respondent-Madan Lal Dogra would have put up any file deficient of administrative requirements then surely superior officer coming to pass orders on the respective files would not have let it escape his/her notice and observation to pin point the default of compliance on the part of the respondent-Rajesh Koul and the respondent-Madan Lal Dogra so as to expose their criminal complicity in the alleged wrong doing of the other accused persons. 22. Although Mrs. Monika Kohli learned counsel representing CBI has put up a very valiant and vehement submissions urging upon this Court to put the trial of the criminal case against the respondents on track which got de-tracked by order of discharge passed in their favour against which the criminal revisions came to be preferred but the submissions made by
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Mrs. Monika Kohli though very inviting but do not draw support from the text and fabric of the criminal revision petitions which were authored in 2010. Submission of Mrs. Monika Kohli cannot lend a life to the tone and tenor of the criminal revisions so filed by the CBI, Jammu when it ought to have been in the criminal revision petitions that the reasoning set up by the Court of Special Judge, Anti Corruption, Jammu ought to have been confronted by reference to the evidence on record to link the culpable complicity of the respondent-Rajesh Koul and the respondent Madan Lal Dogra in the authorship of the crime alleged against main actors who came to be named as accused along with the above named two respondents. Thus, the efforts of Mrs. Kohli can be best reflected to be an attempt to square a circle. 23. This court, therefore, cannot carry out threadbare analysis on the facts and circumstances set up by the CBI, Jammu on the basis of which the court of Special Judge (Anti Corruption), Jammu came to discharge the said two persons from the array of the accused persons. Suffice to say and observe that the pivotal points raised by the court of Special Judge (Anti Corruption), Jammu are not alien or foreign to the facts and circumstances on the file and, therefore, the CBI, Jammu in its revision petitions ought to have come forward with a pointed reply by reference to the facts and circumstances on
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the police report to pose a challenge that on the basis of the said cited facts and circumstances of the case, the reasoning of fact used and served by the court of Special Judge (Anti Corruption), Jammu is misconceived. CBI, Jammu cannot be heard to say that every challan presented by it means last word on the complicity of all the persons named as accused persons and, therefore, it is not the domain of the trial court to consider discharge of any of the accused persons whom the trial court considers not to be charged for the lack of cases made against him/her. 24. In view of the aforesaid, all the revision petitions are hereby dismissed by this common judgment. A copy of this judgment to be kept on each individual file.
(RAHUL BHARTI) JUDGE JAMMU
19.12.2023
Naresh/Secy.
Whether order is speaking: Yes/No Whether order is reportable: Yes/No