# THE STATE OF JAMMU & KASHMIR AND OTHERS v. DR. SALEEM UR REHMAN

- **Citation:** [2021] 10 S.C.R. 864
- **Court:** Supreme Court of India
- **Decided:** 2021-10-29
- **Case number:** Criminal Appeal No. 1170 of 2021
- **Bench:** M.R. Shah, A.S. Bopanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-jammu-kashmir-and-others-v-dr-saleem-ur-rehman-34734
- **Pages:** 35

## Headnote

J&K Prevention of Corruption Act, 2006: s.3, second proviso,
s.5(1)(d) r/w 5(2) - Authorisation by Senior Superintendent of Police
to the inspector to enquire into the FIR for the offences under
ss.5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and s.120-B of the
Ranbir Penal Code, legality of - Requirement to give reasons in the
authorisation - Held: It cannot be said that there was nonapplication of mind on the part of the Senior Superintendent of
Police authorising the inspector to enquire into the FIR for the stated
offences - The inspector who was authorised to investigate the FIR
for the said offences was also authorised to arrest the accused
persons whenever and wherever necessary - In the said
authorisation, it was specifically mentioned that he will conduct the
investigation of the case under the supervision of the Superintendent
of Police - Therefore, all precautions were taken by the Senior
Superintendent of Police authorising the Inspector to investigate
the FIR - Even otherwise, a plain reading of the second proviso to
s.3 shows that only two requirements are required to be satisfied,
namely, (i) authorisation in writing by an officer of the Vigilance
Organisation not below the rank of Assistant Superintendent of
Police to an officer of not below the rank of Sub-Inspector of Police
to investigate such offences; and (ii) such officer authorised may
investigate the offences so specified in the order of authorisation -
Therefore, as such, there is no requirement of giving either special
reasons nor there is requirement to mention reasons - What is
required to be considered is whether there is an application of mind
with respect to offences and the relevant provisions with respect to
authorisation - Considering the above authorisation, it cannot be
said that such authorisation authorising inspector to investigate
the FIR can be said to be vitiated and/or can be said to be void
which warrants quashing of the entire criminal proceedings
including the FIR - Ranbir Penal Code - s.120-B.
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J&K Prevention of Corruption Act, 2006: s.155 - Noncompliance of - By impugned order, High Court observed that for
an investigating agency to investigate the group of offences which
include the non-cognizable one, it must obtain a sanction from the
concerned Magistrate before launching the investigation and in
the instant case no such sanction from the concerned Magistrate
was obtained - Propriety - Held: The substantive offences against
the respondent were under J&K PC Act, 2006 and as per s.3 of the
Act, all offences under the Act are cognizable and non-bailable -
As such, the said issue is squarely covered against the respondent
in view of the decision of this Court in the case of Pravin Chandra
Mody wherein it was held that where the information discloses a
cognizable as well as a non-cognizable offence, the police officer
is not debarred from investigating any non-cognizable offence which
may arise out of the same facts and he can include that noncognizable offence in the charge-sheet which he presents for a
cognizable offence - The offence under the Prevention of Corruption
Act is a substantive offence and the investigation in respect of the
offence under the PC Act, when considered and coupled with the
offence of conspiracy, there is no requirement of prior sanction of
the Magistrate - Merely because the offence of the conspiracy may
be involved, investigation into the offence under the PC Act which
is cognizable is not required to await a sanction from the Magistrate,
as that would lead to a considerable delay and affect the
investigation and it will derail the investigation - Therefore, the
High Court erred in quashing the criminal proceedings on the ground
that the offence under s.120B is a non-cognizable, prior sanction
as required under s.155 of J&K Cr.P.C. is not obtained.
Vigilance Manual, 2008: Rule 3.16 - Validity of - A close
reading of Rule 3.16 showed that the same can be said to be in the
interest of the

## Text

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SUPREME COURT REPORTS
[2021] 10 S.C.R.
[2021] 10 S.C.R. 864
864
THE STATE OF JAMMU & KASHMIR AND OTHERS
v.
DR. SALEEM UR REHMAN
(Criminal Appeal No. 1170 of 2021)
OCTOBER 29, 2021
[M.R. SHAH AND A.S. BOPANNA, JJ.]
J&K Prevention of Corruption Act, 2006: s.3, second proviso,
s.5(1)(d) r/w 5(2) - Authorisation by Senior Superintendent of Police
to the inspector to enquire into the FIR for the offences under
ss.5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and s.120-B of the
Ranbir Penal Code, legality of - Requirement to give reasons in the
authorisation - Held: It cannot be said that there was nonapplication of mind on the part of the Senior Superintendent of
Police authorising the inspector to enquire into the FIR for the stated
offences - The inspector who was authorised to investigate the FIR
for the said offences was also authorised to arrest the accused
persons whenever and wherever necessary - In the said
authorisation, it was specifically mentioned that he will conduct the
investigation of the case under the supervision of the Superintendent
of Police - Therefore, all precautions were taken by the Senior
Superintendent of Police authorising the Inspector to investigate
the FIR - Even otherwise, a plain reading of the second proviso to
s.3 shows that only two requirements are required to be satisfied,
namely, (i) authorisation in writing by an officer of the Vigilance
Organisation not below the rank of Assistant Superintendent of
Police to an officer of not below the rank of Sub-Inspector of Police
to investigate such offences; and (ii) such officer authorised may
investigate the offences so specified in the order of authorisation -
Therefore, as such, there is no requirement of giving either special
reasons nor there is requirement to mention reasons - What is
required to be considered is whether there is an application of mind
with respect to offences and the relevant provisions with respect to
authorisation - Considering the above authorisation, it cannot be
said that such authorisation authorising inspector to investigate
the FIR can be said to be vitiated and/or can be said to be void
which warrants quashing of the entire criminal proceedings
including the FIR - Ranbir Penal Code - s.120-B.
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J&K Prevention of Corruption Act, 2006: s.155 - Noncompliance of - By impugned order, High Court observed that for
an investigating agency to investigate the group of offences which
include the non-cognizable one, it must obtain a sanction from the
concerned Magistrate before launching the investigation and in
the instant case no such sanction from the concerned Magistrate
was obtained - Propriety - Held: The substantive offences against
the respondent were under J&K PC Act, 2006 and as per s.3 of the
Act, all offences under the Act are cognizable and non-bailable -
As such, the said issue is squarely covered against the respondent
in view of the decision of this Court in the case of Pravin Chandra
Mody wherein it was held that where the information discloses a
cognizable as well as a non-cognizable offence, the police officer
is not debarred from investigating any non-cognizable offence which
may arise out of the same facts and he can include that noncognizable offence in the charge-sheet which he presents for a
cognizable offence - The offence under the Prevention of Corruption
Act is a substantive offence and the investigation in respect of the
offence under the PC Act, when considered and coupled with the
offence of conspiracy, there is no requirement of prior sanction of
the Magistrate - Merely because the offence of the conspiracy may
be involved, investigation into the offence under the PC Act which
is cognizable is not required to await a sanction from the Magistrate,
as that would lead to a considerable delay and affect the
investigation and it will derail the investigation - Therefore, the
High Court erred in quashing the criminal proceedings on the ground
that the offence under s.120B is a non-cognizable, prior sanction
as required under s.155 of J&K Cr.P.C. is not obtained.
Vigilance Manual, 2008: Rule 3.16 - Validity of - A close
reading of Rule 3.16 showed that the same can be said to be in the
interest of the accused and/or a person against whom the allegations
are made and to safeguard the accused against frivolous complaints
- As per Clause 3.16 only after the Preliminary Enquiry is conducted
and there is a prima facie case found, an FIR is required to be
registered - Considering the nature of offences, a detailed enquiry
is required and therefore it is observed in Clause 3.16 that a PE
should be completed normally within a period of six months - As
per the law laid down in the case of Lalita Kumari, a detailed
investigation into the allegations on merits is not required by holding
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN
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Preliminary Enquiry and that such enquiry is to be completed within
a period of seven days, however, it is not held that if the Preliminary
Enquiry is not completed within a period of seven days, the entire
criminal proceedings would be void and the same are to be quashed
- Rule 3.16 can be said to be in consonance with the observations
and the law laid down by this Court in the case of Lalita Kumari.
Vigilance Manual, 2008: Rule 3.16 - While considering the
prima facie case for the purpose of registering the FIR, some enquiry/
investigation is bound to be there, however, the same shall be only
for the purpose of finding out a prima facie case for the purpose of
registration of the FIR only - Whatever enquiry is conducted at the
stage of Preliminary Enquiry, by no stretch of imagination, will be
considered as investigation under the Code of Criminal Procedure
which can only be after registration of the FIR - Even otherwise,
merely because while holding a Preliminary Enquiry a detailed
enquiry is made into the allegations made against the respondent
which can be said to be only for the purpose of finding out a prima
facie case for the purpose of registration of the FIR and merely
because some more time is taken in conducting the Preliminary
Enquiry before registering the FIR, the entire criminal proceedings
cannot be quashed - There shall not be any prejudice caused to the
accused at the stage of holding Preliminary Enquiry which shall
only be for the purpose of satisfying whether any prima facie case
is made out with respect to the allegations made in the complaint
which requires further investigation after registering the FIR or not
- Therefore, the High Court has materially erred in holding and
declaring Clause 3.16 as ultra vires.
Liability: Vicariously liability of respondent in the absence of
main conspirators - Allegations against the respondent are in respect
of his individual capacity - Therefore, there is no question of any
vicarious liability.
Allowing the appeal, the Court
HELD: 1.1 It cannot be said that there was any nonapplication of mind on the part of the Senior Superintendent of
Police authorising the inspector 'NH' to enquire into the FIR for
the offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act,
2006 and 120-B of the Ranbir Penal Code. Inspector 'NH' who
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was authorised to investigate the FIR for the said offences was
also authorised to arrest the accused persons whenever and
wherever necessary. In the said authorisation, it was specifically
mentioned that he will conduct the investigation of the case under
the supervision of the Superintendent of Police (BKB). Therefore,
all precautions are taken by the Senior Superintendent of Police
authorising the Inspector 'NH' to investigate the FIR for the
offences under the J&K PC Act, 2006. [Para 8.6][893-G-H;
894-A-B]
State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC
335 : [1990] 3 Suppl. SCR 259; State of M.P. v. Ram
Singh (2000) 5 SCC 88: [2000] 1 SCR 579 - relied
on.
1.2 Even otherwise, a plain reading of the second proviso
to Section 3 showed that only two requirements are required to
be satisfied, namely, (i) authorisation in writing by an officer of
the Vigilance Organisation not below the rank of Assistant
Superintendent of Police to an officer of not below the rank of
Sub-Inspector of Police to investigate such offences; and (ii) such
officer authorised may investigate the offences so specified in
the order of authorisation. Therefore, as such, there is no
requirement of giving either special reasons or there is no
requirement to mention reasons. What is required to be
considered is whether there is an application of mind with respect
to offences and the relevant provisions with respect to
authorisation. Considering the above authorisation, it cannot be
said that such authorisation authorising Inspector 'NH' to
investigate the FIR for the offences under Sections 5(1)(d) r/w
5(2) of the J&K PC Act, 2006 and 120B of the RPC can be said
to be vitiated and/or can be said to be void which warrants quashing
of the entire criminal proceedings including the FIR. Therefore,
as such, the High Court has committed a grave error in quashing
the entire criminal proceedings holding that authorisation in favour
of Inspector 'NH' was bad in law, relying upon the observations
made by this Court in the case of Bhajan Lal, which has been
subsequently explained by this court in the case of Ram Singh. In
the facts and circumstances of the case and considering the
authorisation read with the second proviso to Section 3,
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authorisation cannot be said to be illegal and/or invalid.
[Para 8.6][894-C-G]
2.1 Now so far as the finding recorded by the High Court
for non-compliance of Section 155 of J&K Cr.P.C. is concerned,
the High Court has observed that for an investigating agency to
investigate the group of offences which include the non-cognizable
one, it must obtain a sanction from the concerned Magistrate
before launching the investigation and in the present case no
such sanction from the concerned Magistrate was obtained, the
substantive offences against the respondent were under J&K
PC Act, 2006 and as per Section 3 of the Act, all offences under
the Act are cognizable and non-bailable. As such, the aforesaid
issue is squarely covered against the respondent in view of the
decision of this Court in the case of Pravin Chandra Mody.
[Para 9][894-G-H; 895-A-B]
Pravin Chandra Mody v. State of Andhra Pradesh
[1965] 1 SCR 269 - relied on.
2.2 In the instant case, the offence under the Prevention of
Corruption Act is a substantive offence and the investigation in
respect of the offence under the PC Act, when considered and
coupled with the offence of conspiracy, there is no requirement
of prior sanction of the Magistrate. Merely because the offence
of the conspiracy may be involved, investigation into the
substantive offence, i.e., in the present case, offence under the
PC Act which is cognizable is not required to await a sanction
from the Magistrate, as that would lead to a considerable delay
and affect the investigation and it will derail the investigation.
Therefore, the High Court has erred in quashing the criminal
proceedings on the ground that as the offence under Section
120B which is a non-cognizable, prior sanction as required under
Section 155 of J&K Cr.P.C. is not obtained. [Para 10][895-G-H;
896-A-B]
3. Rule 3.16 of the Vigilance Manual, 2008 can be said to
be in consonance with the observations and the law laid down by
this Court in the case of Lalita Kumari. A close reading of Rule/
Clause 3.16 showed that even the same can be said to be in the
interest of the accused and/or a person against whom the
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allegations are made and to safeguard the accused against
frivolous complaints. As per Clause 3.16 only after the Preliminary
Enquiry is conducted and there is a prima facie case found, an
FIR is required to be registered. Considering the nature of
offences, a detailed enquiry is required and therefore it is
observed in Clause 3.16 that a PE should be completed normally
within a period of six months. It is the case on behalf of the
respondent and even as observed and held by the High Court in
the impugned judgment and order as per the law laid down by
this Court in the case of Lalita Kumari, a detailed investigation
into the allegations on merits is not required by holding
Preliminary Enquiry and that such enquiry is to be completed
within a period of 7 days is concerned, it is to be noted that in the
case of Lalita Kumari, it is not held that if the Preliminary Enquiry
is not completed within a period of 7 days, the entire criminal
proceedings would be void and the same are to be quashed.
[Paras 11, 12][896-C, G-H; 897-A-B]
Lalita Kumari v. Government of Uttar Pradesh AIR 2014
SC 187 : 2014 (2) SCC 1: [2013] 14 SCR 713; State of
Punjab v. Brij Lal Palta [1969] 1 SCR 853; Satya
Narain Musadi v. State of Bihar (1980) 3 SCC 152;
Madan Lal v. State of Punjab [1967] 3 SCR 439;
Bhanwar Singh v. State of Rajasthan [1968] 2 SCR 528
- relied on.
4.1 While holding a Preliminary Enquiry under Clause 3.16,
whatever is conducted will be in the form of enquiry into the
allegations to consider whether any prima facie case is made out
which requires further investigation after registering the FIR.
While considering the prima facie case for the purpose of
registering the FIR, some enquiry/investigation is bound to be
there, however, the same shall be only for the purpose of finding
out a prima facie case for the purpose of registration of the FIR
only. Whatever enquiry is conducted at the stage of Preliminary
Enquiry, by no stretch of imagination, will be considered as
investigation under the Code of Criminal Procedure which can
only be after registration of the FIR. Even otherwise, merely
because while holding a Preliminary Enquiry a detailed enquiry
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN
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is made into the allegations made against the respondent which
can be said to be only for the purpose of finding out a prima facie
case for the purpose of registration of the FIR and merely because
some more time is taken in conducting the Preliminary Enquiry
before registering the FIR, the entire criminal proceedings cannot
be quashed. There shall not be any prejudice caused to the
accused at the stage of holding Preliminary Enquiry which shall
only be for the purpose of satisfying whether any prima facie case
is made out with respect to the allegations made in the complaint
which requires further investigation after registering the FIR or
not. Therefore, the High Court has materially erred in holding
and declaring Clause 3.16 as ultra vires. [Para 13][897-D-H]
4.2 Now so far as the 4th ground/question on which the High
Court has quashed the criminal proceedings, namely, the
respondent cannot be held vicariously liable in the absence of
main conspirators - Private Limited Companies and/or their incharge persons is concerned, it is to be noted that the allegations
against the respondent are in respect of his individual capacity.
Besides the Directors of the Private Limited Companies,
respondent no.1 and other officials have been arrayed as an
accused. Therefore, there is no question of any vicarious liability
and the observations made by the High Court that in absence of
main conspirators - Private Limited Companies and/or their incharge persons, respondent no.1 cannot be held liable is
unsustainable and cannot be accepted. The High Court has erred
in quashing the entire criminal proceedings on the aforesaid
ground. [Para 14][898-A-C]
S.N. Mukherjee v. Union of India (1990) 4 SCC 594 :
[1990] 1 Suppl. SCR 44; Union of India v. E.G.
Nambudiri (1991) 3 SCC 38 : [1991] 2 SCR 451; Oryx
Fisheries Pvt. Ltd. v. Union of India (2010) 13 SCC
427 : [2010] 13 SCR 234; Special Land Acquisition
Officer, Bombay v. Godrej & Boyce (1988) 1 SCC 50 :
[1988] 1 SCR 590; Indian National Congress v. Institute
of Social Welfare (2002) 5 SCC 685 : [2002] 3
SCR 1040; Nazir Ahmad v. The King Emperor AIR 1936
PC 253; State of Uttar Pradesh v. Singhara Singh
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[1964] 4 SCR 485; Priyanka Srivastava v. State of Uttar
Pradesh (2015) 6 SCC 287 : [2015] 4 SCR 108 -
referred to.
Taylor v. Taylor (1875) 1 Ch.D, 426, 431- referred to.
Case Law Reference
[1990] 1 Suppl. SCR 44
referred to
Para 6.7
[1991] 2 SCR 451
referred to
Para 6.7
[2010] 13 SCR 234
referred to
Para 6.7
[1988] 1 SCR 590
referred to
Para 6.8
[2002] 3 SCR1040
referred to
Para 6.8
[1965] 1 SCR 269
referred to
Para 6.10
[1969] 1 SCR 853
relied on
Para 11
(1980) 3 SCC 152
relied on
Para 11
[1967] 3 SCR 439
relied on
Para 11
[1968] 2 SCR 528
relied on
Para 11
AIR 1936 PC 253
referred to
Para 7.4
[1964] 4 SCR 485
referred to
Para 7.4
[2015] 4 SCR 108
referred to
Para 7.13
[1990] 3 Suppl. SCR 259
relied on
Para 8.4
[2000] 1 SCR 579
relied on
Para 8.4
[2013] 14 SCR 713
relied on
Para 12
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1170 of 2021.
From the Judgment and Order dated 07.05.2018 of the High Court
of Jammu and Kashmir at Srinagar in OWP No.1961 of 2015.
R. Venkataramani, Sr. Adv., Ms. Taruna Ardhendumauli Prasad,
Parth Awasthi, Chitwan Singhal, Advs. for the Appellants.
R. Basant, Sr. Adv., P. V. Dinesh, Salih Pirzada, Ashwini Kumar
Singh, Bineesh K., Advs. for the Respondent.
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The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 07.05.2018 passed by the High Court of Jammu &
Kashmir at Srinagar in O.W.P. No. 1961/2015, by which the High Court
in exercise of its extra-ordinary jurisdiction has quashed the criminal
proceedings being FIR No. 32/2012 and has declared Rule 3.16 of the
Vigilance Manual, 2008 dealing with the Preliminary Enquiry (PE) being
in direct conflict with the Constitution Bench Judgment of this Court in
the case of Lalita Kumari v. Government of Uttar Pradesh, reported
in AIR 2014 SC 187 = 2014 (2) SCC 1, and consequently has declared
the same ultra vires, the State has preferred the present appeal.
2. That an FIR being FIR No. 32/2012, Police Station, VOK was
registered against the respondent herein under Section 5(1)(d) r/w 5(2)
of the J&K Prevention of Corruption Act, 2006 (hereinafter referred to
as the 'J&K PC Act, 2006') and Section 120B of the Ranbir Penal
Code (hereinafter referred to as the 'RPC') alleging inter alia that during
2010-11, the Director Health Services, Kashmir along with the other
accused persons misappropriated the huge amount of government money
by way of effecting purchases of sub-standard medical kits under National
Rural Health Mission (NRHM) at highly exorbitant rates and in violation
of the conditions of supply orders placed by the department. It was
alleged against the respondent as under:
i)
The respondent herein purchased various drug kits under
NRHM Scheme from 4 CPSEs through limited tender and
all the 4 CPSEs surprisingly quoted same rates. It was
decided to place supply orders to the tune of 25% from
each of the CPSEs.
ii)
The quoted rates by the 4 CPSEs were far in excess when
compared to rates on which purchases had been affected
during previous year. The Respondent herein wilfully ignored
the rates at which the same kind of drug kits were purchased
by the department from private companies as per rate
contract dated 28-03-2009 valid for one year approved by
Rate Contract Committee No.1 of Health & Medical
Education whereby the rates of drug kits were far less than
as quoted by the 4 CPSEs, the comparison is as under: -
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It is pertinent to point out that the Respondent herein had
full knowledge of approved rates of drug kits valid for year
2009-10, as he was then posted as Assistant Director, Family
Welfare & Reproductive Child Health Care and was
designated as member of Sub-Committee of Purchase
Committee No.1 which approved the rates for the year
2009-10.
iii)
No market survey was conducted to ascertain the
genuineness of rates quoted by the firms nor any negotiations
were done to ensure that Government exchequer was not
put to any loss etc during the year 2010-11.
iv)
No samples of drug kits were obtained to verify the quality
control check over packing & Packaging of medicines and
kits.
v)
The Respondent herein purchased NRHM kits not from
the original manufacture but from suppliers at exorbitant
rates.
vi)
The purchased kits and the medicines were not of required
standard. Further maximum drugs/items constituting the
three types of kits were actually been manufactured by
private agencies and not by the CPSEs themselves or by
their subsidiaries as a result of which undue benefit has
accrued to the private agencies under the garb of PPP,
which was never the intent of it.
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN
[M. R. SHAH, J.]
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vii)
As per the guidelines laid down by Ministry of Health &
Family Welfare Govt. of India and Ministry of Chemicals
& Fertilizers Govt. of India, Purchase Preference Policy
(PPP) for CPSEs was valid only in respect of 102 drugs/
medicines, whereas various components of the three
mentioned drug kits were not figuring in 102 listed drugs
under PPP.
viii)
As per the guidelines of GOI, the rates of drugs constituting
the drug kits should be as per rates fixed by National Pharma
Pricing Authority with discount of up to 35%. It is pertinent
to point out that the purchasing department did not seek
any rate list of NPPA or rate analysis from the supplier
CPSEs to ascertain whether the rates quoted are actually
as certified by NPPA and further to see whether a discount
up to 35% has been given on such rates.
ix)
All the 4 CPSEs raised objection to the condition laid down
in Clause No.02 of the Supply Orders wherein it was stated
that all the drugs and items should be manufactured by the
firm itself and no drug/item will be accepted manufactured
by any other concern. The Respondent herein issued
corrigendum thereby modifying the earlier order which
conveyed that the items can be purchased from other
sources also and thus the already purchased substandard
items were passed by the New Board, thereby causing a
loss of Rs. 1,04,99,429/- to the State exchequer.
3. The respondent-accused approached the High Court by way
of O.W.P. No. 1961/2015 invoking its extra-ordinary jurisdiction to quash
the aforesaid criminal proceedings, raising the following questions:
a)
Whether Section 3 of the Prevention of Corruption Act is a
mandatory provision and its non-adherence vitiates the
investigation?
b)
Whether prior sanction of a Magistrate under Section 155
Jammu & Kashmir Cr.P.C. is mandatory for investigating
cognizable offences along with non-cognizable?
c)
Whether under the pretext of Preliminary Verification the
investigating agency can verify the veracity of a complaint
before registration of FIR?
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d)
Whether an offence like that of Criminal Conspiracy can
be committed by a juridical person like a company?
Heavy reliance was placed on the decision of this Court in the
case of State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335 as
well as the decision of this Court in the case of Lalita Kumari (supra).
4. By the impugned judgment and order, the High Court has
quashed the entire criminal proceedings initiated against the respondent
for the aforesaid offences by holding that:
(1)
there is a non-compliance of the mandatory provision under
Section 3 of the J&K PC Act, 2006 inasmuch as no special
and separate reasoned order was passed by the authorising
officer while conferring authority on a non-designated
officer as per second proviso to Section 3;
(2)
prior sanction of the Magistrate for the offence under
Section 120B as required under Section 155 of the J&K
Cr.P.C. was not obtained;
(3)
there was a delay in conducting the preliminary verification
and by holding the preliminary verification the authority
entered into the domain of investigation which is not
permissible as held by this Court in the case of Lalita
Kumari (supra); and
(4)
the allegations made in the FIR even if accepted to be true
in its entirety are legally not tenable.
4.1 Holding above, the High Court has quashed the preliminary
verification No. 34/2011, FIR No. 32/2012, Police Station, Vigilance
Organisation Kashmir and the resultant investigation of the FIR. The
High Court has also quashed the Entrustment Order dated 16.11.2012
passed by the Senior Superintendent of Police, VOK, Srinagar authorising
the investigating officer to investigate the case/offences. The High Court
has also declared Rule 3.16 of the Vigilance Manual, 2008 dealing with
Preliminary Enquiry (PE) as ultra vires on the ground that the same is in
direct conflict with the decision of this Court in the case of Lalita Kumari
(supra).
5. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, the State of Jammu & Kashmir has
preferred the present appeal.
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN
[M. R. SHAH, J.]
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6. Shri R. Venkataramani, Learned Senior Advocate has appeared
on behalf of the appellants and Shri R. Basant, Learned Senior Advocate
has appeared on behalf of the respondent.
6.1 Shri R. Venkataramani, Learned Senior Advocate appearing
on behalf of the State has vehemently submitted that in the facts and
circumstances of the case, the High Court has committed a grave error
in quashing the entire criminal proceedings including the FIR and even
the Entrustment Order dated 16.11.2012.
6.2 It is submitted that the High Court formulated the four questions,
which are reproduced hereinabove. It is submitted that so far as question
no. 1, whether Section 3 of the Prevention of Corruption Act is a
mandatory provision and its non-adherence vitiates the investigation is
concerned, it is submitted that the conclusions drawn by the High Court
are in disregard of the relevant provisions of the J&K PC Act, 2006 and
the J&K Cr.P.C.
6.3 It is submitted that the reliance placed on the decision of this
Court in the case of Bhajan Lal (supra) is absolutely misconceived. It
is submitted that in Bhajan Lal's case, Sections 3 & 5A of the
Prevention of Corruption Act, 1947 (hereinafter referred to as the '1947
Act'), prior to the amendment of the Act in 1988, fell for consideration.
It is submitted that Section 3 of the J&K PC Act, 2006 under which the
prosecution in question was initiated does not correspond either to Section
3 or Section 5A of the 1947 Act. It is submitted that J&K PC Act, 2006
does not contain a provision corresponding to Section 5A of the 1947
Act.
6.4 It is submitted that the High Court has not properly appreciated
the fact that the reasoning adopted in Bhajan Lal's case on requirement
of giving reasons for an authorisation under Section 5A of the 1947 Act,
had arisen in the context of the special provisions of Section 5A. It is
submitted that the Court has treated the requirement of giving reasons
by a Magistrate in the context of giving permission to a non-designated
officer to conduct investigation, and the administrative function of
delegation of function of investigation by a superior police officer to a
subordinate police officer, as comparable. It is submitted that in view of
the fact that Section 3 of the J&K PC Act, 2006 with its own special
scheme of delegation enacted in the second proviso to Section 3, reliance
on Bhajan Lal's case which was with reference to Section 5A of the
1947 Act is absolutely misconceived.
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6.5 It is further submitted that as such the decision of this Court in
the case of Bhajan Lal (supra) has been subsequently explained by
this Court in the case of State of M.P. v. Ram Singh (2000) 5 SCC 88.
It is submitted that in the case of Ram Singh (supra), the order of the
Superintendent of Police authorising the Inspector to investigate the
offence under the Prevention of Corruption Act, 1988 indicating the name
of the accused, number of the FIR, the nature of the offence and the
power of the Superintendent of Police permitting him to authorise a junior
officer to investigate, the same is held to be a valid authorisation. It is
submitted that in the aforesaid decision, this Court has distinguished the
decision of this Court in the case of Bhajan Lal (supra). It is submitted
that therefore the subsequent decision of this Court in the case of Ram
Singh (supra) will squarely apply to the facts of the case in hand.
6.6 It is submitted that authorisation in the present case by the
Senior Superintendent of Police, Vigilance Organisation is clearly covered
by and falls within the scope of the second proviso to Section 3. It is
submitted that the High Court has not adverted to the distinct features of
the second proviso to Section 3. It is submitted that the second proviso
does not demand the requirement of giving reasons for conferring authority
on a non-designated officer to conduct investigation.
6.7 It is further submitted that unlike discharge of functions, judicial
or quasi-judicial in nature, an administrative authority is not obliged to
give reasons in the discharge of all its functions. It is submitted that the
second proviso to Section 3 has been enacted for administrative
convenience and for expeditious investigation. It is submitted that in the
very nature of such functions, it can be presumed that the reasons need
not be given for authorising an officer of vigilance organisation to conduct
investigation. In support of above, reliance is placed on the decisions of
this Court in the cases of S.N. Mukherjee v. Union of India, (1990) 4
SCC 594; Union of India v. E.G. Nambudiri, (1991) 3 SCC 38 and
Oryx Fisheries Pvt. Ltd. v. Union of India, (2010) 13 SCC 427.
6.8 It is submitted that therefore the requirement of giving reasons
for the authorisation referred to in the second proviso to Section 3 is
misconceived. Firstly, the proviso itself does not contemplate the giving
of reasons for the authorisation of power to investigate and secondly,
the power to authorise being purely administrative based on expediency
and public policy, no reasons need to be given. It is submitted that the
matter of delegation of the power to investigate upon a non-designated
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN
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officer, does not involve rights of any party. There is no lis in the matter.
The actions taken under the second proviso are not subject to any appeal,
or revision. It is submitted that only where rights of parties are involved;
the nature of the function in question is quasi-judicial, or is in the hierarchy
of appellate or revisional power, reasons may be required to be given
and not otherwise. Reliance is placed on the decisions of this Court in
the cases of Special Land Acquisition Officer, Bombay v. Godrej &
Boyce, (1988) 1 SCC 50 and Indian National Congress v. Institute
of Social Welfare, (2002) 5 SCC 685.
6.9 Now so far as question no.2, whether prior sanction of a
Magistrate under Section 155 of the J&K Criminal Procedure Code is
mandatory for investigating cognizable offences along with non-cognizable
offences is concerned, it is submitted that the High Court has compared
Section 155 of the J&K Cr.P.C. and Section 155 of the Cr.P.C., 1973. It
is submitted that a particular reference has been made to sub-section
(4) of Section 155 of the Cr.P.C., 1973. It is submitted that the High
Court by holding that the J&K Cr.P.C. does not have in Section 155 a
provision comparable to sub-section (4) of Section 155 of the Cr.P.C.,
1973, has reached the conclusion that in the absence of a valid sanction
by the Magistrate as provided under Section 155 of the J&K Cr.P.C.,
the investigation is illegal.
6.10. It is submitted that the aforesaid issue is squarely covered in
favour of the State in view of the decision of this Court in the case of
Pravin Chandra Mody v. State of Andhra Pradesh, 1965 (1) SCR
269 (para 6).
6.11 Learned Senior Advocate appearing on behalf of the State
has also taken us to the legislative history behind Section 155(4) and the
37th Report of the Law Commission regarding investigation of a cognizable
offence in the company of a non-cognizable offence, particularly the
requirement of obtaining an authorisation from the Magistrate. It is
submitted that pursuant to the 41st Report of the Law Commission, subsection (4) was inserted in Section 155 Cr.P.C. It is submitted that as
observed in the 37th Report, the law has already been laid down by this
Court in the case of Pravin Chandra Mody (supra) and what was
required to be done was only to enact a provision on the lines of Pravin
Chandra Mody (supra). It is submitted that decision of this Court in
the case of Pravin Chandra Mody (supra) has been considered
subsequently by this Court in the cases of State of Punjab v. Brij Lal
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Palta (1969) 1 SCR 853; Satya Narain Musadi v. State of Bihar,
(1980) 3 SCC 152; Madan Lal v. State of Punjab, (1967) 3 SCR
439; and Bhanwar Singh v. State of Rajasthan, (1968) 2 SCR 528.
6.12 It is submitted that the issue as to whether an investigation in
respect of offences under the Prevention of Corruption Act, when coupled
with the offence of conspiracy should always be subject to a prior sanction
by the Magistrate, has to be seen from the perspective that merely
because the offence of conspiracy may be involved, investigation into
the substantive offences which are cognizable should await a sanction
from the Magistrate, as that would lead to considerable delay and
uncertainty in the threshold investigation steps. It does not matter that
the offence of conspiracy under Section 120B is also treated as a
substantive offence.
6.13 It is submitted that if the view taken by the High Court is
correct law, it will be in the case of investigation under every special
statute where the offences are cognizable, a link with 120B of conspiracy
offence will derail all such investigations and lead to delay.
6.14 Now so far as question no.3, namely, whether under the
pretext of preliminary verification, the investigating agency can verify
the veracity of a complaint before registration of FIR and the observations
and the findings recorded by the High Court that Rule 3.16 of J&K
Vigilance Manual, 2008 is in direct conflict with the judgment of this
Court in the case of Lalita Kumari (supra) is concerned, it is submitted
that the view taken by the High Court is absolutely misconceived. It is
submitted that Lalita Kumari (supra) takes note of special procedure
to be followed in the cases of special statutes. Sections 4 & 5 of the
Code of Criminal Procedure, 1973 have also been noticed by the High
Court. Having regard to the wide spectrum of statutory offences to be
investigated under ever increasing special statutes, it would be unwise
to thwart the investigation and the prosecution on the touchstone of
irregularities, if any, in the conduct of preliminary investigations and
registrations of FIR. It is submitted that Rule 3.16 of the Vigilance
Manual, 2008 is a well-drawn scheme fitting in squarely with the
provisions of Sections 4 & 5 of the Cr.P.C., 1973.
6.15 It is further submitted that in the very nature of the investigation
of such offences as the instant case which may involve not only collection
of documentary evidence but other preliminary statements to be obtained
for the purpose of investigation, in order to rule out the absence of
THE STATE OF JAMMU & KASHMIR v. DR. SALEEM UR REHMAN
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commission of any offence, time will necessarily be consumed. It may
also become inevitable that materials so collected become part of the
investigation as well, which may be of considerable guidance in the course
of investigation. It is submitted that Lalita Kumari (supra) does not
confer any right on the accused to seek a declaration of illegality in
cases of irregularity in the conduct of preliminary enquiry. It is submitted
that no accused who is otherwise prima facie guilty of commission of
offence can walk free from prosecution and punishment if they are
otherwise due. It is submitted that ultimately the test to be applied will
be, whether there is a failure or miscarriage of justice. It is submitted
that instead of applying the above-said principles, the High Court has
unduly intervened and has erred in quashing the prosecution.
6.16 Now so far as the conclusions drawn under question no.4
are contrary to the record of the case. It is submitted that besides the
Directors of Private Limited Company, respondent no.1 and other officials
have been arrayed as the accused. It was not necessary that any person
in the State NRHM machinery should have been suspected and treated
as co-conspirators. It is submitted that according to the investigation, the
conduct of respondent no.1 and other officials accused in the course of
the Tender Process for purchase of the material in question, alone became
suspect events. It is submitted that therefore the High Court has
committed a grave error in quashing the prosecution, holding question
no.4 against the State.
6.17 Making the above submissions and relying upon the aforesaid
decision, it is prayed to allow the present appeal.
7. The present appeal is vehemently opposed by Shri R. Basant,
learned Senior Advocate appearing on behalf of the respondent. It is
submitted that in the facts and circumstances of the case and on true
interpretation of Section 3 of J&K PC Act, 2006 and in the absence of
prior sanction of the Magistrate under Section 155 of the J&K Cr.P.C.,
the High Court has rightly quashed the criminal proceedings initiated
against the respondent.
7.1 It is submitted that the High Court has rightly observed that
under the pretext of the Preliminary Enquiry (PE), the investigating agency
cannot go in detail and verify the veracity of the complaint before
registration of an FIR. It is submitted that therefore the High Court has
rightly declared Rule 3.16 of the Vigilance Manual, 2008 dealing with
Preliminary Enquiry as ultra vires.
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7.2 It is submitted that the investigation under the J&K PC Act,
2006 is controlled by Section 3 of the Act and as such carries a nonobstante clause which precludes the procedure under Cr.P.C. It is
submitted that amended section makes all the offences under the PC
Act cognizable. It is submitted that Section 3 contains two provisos,
which in fact create an embargo on the mode of investigation. As per
the first proviso, inter alia, no police officer below the rank of DSP shall
investigate any offence under the Act without the order of the Magistrate.
The second proviso creates an exception to the condition provided in the
first proviso and as per the second proviso, an officer of the Vigilance
Organisation of and above the rank of Sub-Inspector of Police may
investigate such offences but if specially authorised in writing by an
officer of the Vigilance Organisation not below the rank of Assistant
Superintendent of Police. It is submitted that in the instant case the
investigation of the FIR under challenge was entrusted to Inspector Nisar
Hussain. This officer being a non-designated officer for the purpose of
Section 3, therefore, must be specially authorised by an officer of the
Vigilance Organisation not below the rank of ASP in terms of the second
proviso by way of a separate and reasoned order. It is submitted that the
authority conferred upon such officer of the Vigilance Organisation being
a statutory one, can neither be arbitrary nor unreasonable.