HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 30.12.2024 Pronounced on: 09.04.2024 CRM(M) 466/2023 CrlM 870/2023 1. Munish Bhatia, age 52 years S/o Sh. Madan Mohan Bhatia, R/o 8-A Canal Road, Jammu. 2. Sidharth Bhatia, age 50 years S/o Sh. Madan Mohan Bhatia, R/o 8-A Canal Road, Jammu. … Petitioners/Appellant(s) Through: Mr. Vishal Goel, Advocate V/s UT of Jammu and Kashmir Through Incharge Police Station ACB, Jammu. … Respondent(s) Through: Mrs. Monika Kohli, Sr. AAG CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE J U D G M E N T 09-04-2025 1. The petitioners in the instant petition have invoked inherent power of this court enshrined in section 482 of the Code of Criminal Procedure seeking quashing of order dated 12-05-2023 (for short “impugned order”) passed by the Court of Special Judge, Anti-Corruption Jammu (for short “trial court”) in case titled as “State versus Satish Khajuria and others” arising out of FIR no. 2 of 2014, registered by the Anti-Corruption Bureau (ACB) for commission of offences under section 5(1)(d) read with section 52 of the Jammu and Kashmir Prevention of CRM (M) 466/2023 Corruption Act, Samvat 2006 (for short “Act of 2006”) and Section 120-B of Ranbir Penal Code (for short “RPC”). 2. Factual Background • The petitioners herein claim to be owners of plot no. 292-A situated at Gandhi Nagar, Apsara Road, Jammu and assert that they applied for and came to be granted a building permission by Jammu Municipal Corporation (for short “JMC”) in the year 2012 to construct a residential structure, during the raising of the which construction, certain deviations took place, whereupon noticing the same, the then Chief Khilafwarzi Officer of the JMC issued a show caused notice against the petitioners under section 7(1) of the Control of Building Operations Act 1988 (for short “Act of 1988”) dated 14- 08-2012, alleging therein that the petitioners had begun excavation for a basement and had not constructed partition walls in the construction suggesting a possible commercial use of the said construction and that on the very same date i.e. 14-08-2012, another notice was issued by the JMC under section 12(1) of the Act of 1988 directing the petitioners herein to discontinue the unauthorizedly raised construction followed by a demolition order dated 17.12.2012 issued by the JMC under section 7(3) of the Act of 1988. • The petitioners herein feeling aggrieved of the said demolition order dated 17-12-2012 supra, filed an appeal under section 13 of the Act of 1988 before the Jammu and Kashmir Special Tribunal, Jammu on 27-12-2012, which appeal came to be disposed of by the Tribunal on 16.03.2013, holding that the deviations mentioned in the demolition order are of minor nature and thus directed the regularization of the same upon payment of prescribed compounding fee by the petitioners, which the petitioners claim to have deposited before the JMC. • Meanwhile, on 13-12-2012, an anonymous complaint is stated to have been lodged before the Vigilance Organization (ACB), Jammu against the petitioners qua the construction in question resulting into registration of FIR no. 2 of 2013 dated 9-1-2014 by the ACB against the petitioners and various officials of JMC, alleging in the said FIR that the accused JMC officials had facilitated raising of unauthorized construction by the petitioners and the investigation in the said FIR CRM (M) 466/2023 culminated into filing of a charge sheet before the trial court on 3-3- 2023 being case titled as “State vs. Satish Khajuria and others”. • Upon receiving copy of the charge sheet, the petitioners claimed to have discovered certain crucial documents including the notices issued under the Act of 1988 not included in the charge sheet, as such, filed an application before the trial court seeking its leave to place the said relevant documents on record whereupon the trial court, after hearing the prosecution, as well as the accused persons including the counsel for the petitioners in terms of the impugned order framed charges against the petitioners and other accused persons. 3. The petitioners herein have challenged the impugned order in the instant petition primarily on two grounds: Firstly, that the alleged offences contained in the charge sheet are not made out against them, as the accused officials of the JMC acted within their statutory mandate under the Act of 1988 in the matter, and secondly, since the Special Tribunal upon deciding the appeal of the petitioners had regularized the deviations in the construction raised by the petitioners treating the same to be minor in nature and ordered compounding of the same, the very basis of the charge sheet is thus legally untenable. 4. 4. Reply to the petition has been filed by the respondent herein wherein the petition is being opposed and resisted on the premise that the impugned order does not suffer from any illegality or irregularity and that the charge sheet laid in the matter before the trial court against the petitioners and other accused persons, in fact, owes its origin to a verification conducted by the ACB Jammu upon a complaint whereupon a formal case came to be registered at P/S ACB Jammu under FIR no. 02 of 2014 and CRM (M) 466/2023 after concluding the investigation thereof, offence under section 5(1)(d) of the Act of 2006, read with section 120-B RPC was found to have been committed by the accused persons being the petitioners herein as well as the officials of the JMC, out of which official sanction for prosecution was not accorded qua the accused JMC official Babu Ram, then Joint Commissioner (Adm) JMC, and another accused namely Satish Khajuria had died after presentation of the charge sheet. It is being further stated that the petitioners prior to the filing of the instant petition had filed CRMC 58 of 2014 before this court seeking quashing of FIR no. 02 of 2014 which petition, however, came to be dismissed on 7-9-2018. It is lastly stated that the petition is groundless and that the impugned order is perfectly valid and does not call for any interference by this court. Heard learned counsel for the parties and perused the record. 5. In the first instance, it would be appropriate to refer to the provisions of Section 5(1)(d) read with section 5 (2) of the Act of 2006 as also Section 120-B of RPC. 5. Criminal misconduct. (1) A public servant is said to commit the offence of criminal misconduct- (a) . . . . . . . . . . (b) . . . . . . . . . . (c) . . . . . . . . . . (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage: (e) . . . . . . . . . . CRM (M) 466/2023 [Explanation-For the purposes of this section, "known sources of income" means income received from any lawful source when such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant]. [(1-A) (2) Any public servant who commits any offence of criminal misconduct as referred to in clauses (a), (b) and (e) of sub-section (1), shall be punishable with imprisonment for a term which shall not be less than 2 years but which may extend to seven years and shall also be liable to fine and if he commits criminal misconduct as referred to in clauses (c) and (d) of sub-section (1) shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to five years and shall also be liable to fine. A plain reading of Section 5(1)(d) of the Act of 2006 reveals that the essential ingredients of the offence are: i. The accused must be a public servant; ii. He must have used corrupt or illegal means or otherwise abused his official position; and iii. He must have obtained for himself or any other person a valuable thing or pecuniary advantage. The phrase "abuse of his position as a public servant" implies an act that deviates from the conduct of a prudent officer- one who disregards established statutory rules and procedures to favour a third party, thereby obtaining an undue benefit for them. Further, the use of the expressions "corrupt or illegal means" or "otherwise abusing his position as a public servant" indicates the necessity of a dishonest element in the conduct of the public servant. The phrase "otherwise abusing his position as a public servant" must be interpreted in conjunction with "corrupt or illegal means," meaning that mere procedural lapses or administrative negligence without dishonest intent do not constitute an offence under Section 5(1)(d). For the provision to CRM (M) 466/2023 be attracted, there must be a dishonest intention, which can only be inferred from the facts and circumstances of each case. Section 120-B of RPC reads as follows: "Section 120-B Punishment of criminal conspiracy: (1): Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both." Insofar as the offense of criminal conspiracy punishable under section 120-B RPC supra is concerned, a plain reading thereof reveals that there must be an agreement between two or more persons to commit an illegal act or to use illegal means to achieve a lawful act and the means adopted and the illegal acts done must be in furtherance of the object of the conspiracy. 6. Before proceeding further in the matter, it would be appropriate and advantageous to refer to the judgment of the Apex Court passed in case titled as “Ram Prakash Chadha vs. State of Uttar Pradesh” reported in (2024) 10 SCC 651, pertaining to the Discharge or Framing of Charge inasmuch the offence of criminal conspiracy being relevant and germane to the issues involved in the instant petition. The Apex Court in the judgment supra in this regard, at paras 22, 23, 24 and 25 held as under: 22. In P. Vijayan v. State of Kerala and Anr.6, after extracting Section 227, Cr.PC, this Court in paragraph No.10 and 11 held thus: “10 ….If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial CRM (M) 466/2023 Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 23. In para 13 in P. Vijayan’s case (supra), this Court took note of the principles enunciated earlier by this Court in Union of India v. Prafulla Kumar Sama which reads thus: “10…. (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” CRM (M) 466/2023 24. In the light of the decisions referred supra, it is thus obvious that it will be within the jurisdiction of the Court concerned to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused concerned has been made out. 25. Even after referring to the aforesaid decisions, we think it absolutely appropriate to refer to a decision of the Madhya Pradesh High Court in Kaushalya Devi v. State of MP. It was held in the said case that if there is no legal evidence, then framing of charge would be groundless and compelling the accused to face the trial is contrary to the procedure offending Article 21 of the Constitution of India. While agreeing with the view, we make it clear that the expression ‘legal evidence’ has to be construed only as evidence disclosing prima facie case, ‘the record of the case and the documents submitted therewith’. 7. Insofar as the offence punishable under section 120-B RPC supra is concerned, the Apex Court in the Ram Prakash Chadda’s case supra has at paras 30, 31, 32 and 33 held as under: 30. This Court in the decision in R. Venkatakrishnan v. CBI, held that criminal conspiracy, in terms of Section 120B, IPC, is an independent offence and its ingredients are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either: (a) an illegal act; (b) an act which is not illegal in itself but is also done by illegal means. 31. An important facet of law of conspiracy is that apart from it being a distinct offence, all conspirators are liable for the acts of each other of the crime or crimes which have been committed as a result of conspiracy. A careful scanning of the provisions under Sections 120A and 120B, IPC, would reveal that the sine qua non for an offence of criminal conspiracy is an agreement to commit an offence. It consists of agreement between two or more persons to commit the criminal offence, irrespective of the further consideration whether or not the offence is actually committed as the very fact of conspiracy constitutes the offence (See the decision in K.S. Narayanan & Ors. v. G Gopinathan). 32. There can be no doubt that conspiracy is hatched in privacy and not in secrecy, and such it would rarely be possible to establish conspiracy by direct evidence. A few bits here and a few bits there, on which the prosecution may rely, are not sufficient to connect an accused with the commission of the crime of criminal conspiracy. To constitute even an accusation of criminal conspiracy, first and CRM (M) 466/2023 foremost, there must at least be an accusation of meeting of minds of two or more persons for doing an illegal act or an act, which is not illegal in itself, by illegal means. 33. In Ajay Aggarwal v. Union of India & Ors. this Court characterized the offence of criminal conspiracy as an agreement between two or more persons to do an illegal act or a legal through illegal means. Furthermore, it was held that commission of the offence would be complete as soon as, there is consensus ad idem and it would be immaterial whether or not the offence is actually committed. It is also held therein that necessarily there must be agreement between the conspirators on the design or object of the conspiracy. As held in R. Venkatakrishnan case (supra), the quintessential ingredient to attract the offence of criminal conspiracy is agreement between two or more persons. 8. Keeping in mind the aforesaid position of law, and reverting back to the case in hand, the case of the prosecution, the respondent herein, is primarily based on a presumption that since the accused officials of the JMC did not take action against the petitioners herein at the time of raising of the deviated construction, it must be inferred that the said accused JMC officials and the petitioners herein had for extraneous considerations agreed to commit an illegal act inasmuch as used illegal means to achieve a lawful act in furtherance of the said agreement. However, perusal of the charge sheet does not tend to show any tangible evidence establishing the offense of criminal conspiracy hatched by the JMC officials with the petitioners herein, in that, in law in absence of a tangible evidence, be it direct or circumstantial, to attract either ingredients of the alleged offense or any legal presumption in favour of the prosecution, the offense of conspiracy covered in the charge sheet cannot sustain. Besides, a deeper examination of the material available on the file inasmuch as the scanned record of the trial court tends to CRM (M) 466/2023 show that the investigating agency has not collected any incriminating material during the course of the investigation that would substantiate the allegations qua the offence in question against the petitioners herein. Significantly, neither any financial loss has been caused to the JMC nor any evidence has surfaced to establish a connivance between the accused officials of the JMC and the petitioners herein, so much so, the record of the charge sheet does not even remotely disclose any specific overt act/s forming offence of conspiracy or establishing an agreement amongst the accused persons including the petitioners herein to commit an illegal act or to adopt illegal means thereof. 9. Having regard to the aforesaid position obtaining in the matter inasmuch as the record of the charge sheet, it is manifest that the offence covered therein alleged to have been committed by the petitioners herein does not prima facie stand established against the petitioners on account of absence of the essential elements and ingredients of the offence at this stage, notwithstanding the dismissal of the earlier petition filed by the petitioners for quashing of the FIR supra at its threshold before undertaking the investigation therein. 10. Besides, a closer examination of the impugned order also tends to show that the trial court has overlooked the aforesaid facts inasmuch as the position of law laid down by the Apex Court qua the provisions of Section 227 of Cr.PC and Section 120-B of RPC, CRM (M) 466/2023 and has misdirected itself while passing the impugned order rendering the same legally unsustainable. 11. For what has been observed, considered and analysed hereinabove, the instant petition succeeds, as a consequence whereof the impugned order dated 12-05-2023 passed by the trial court is quashed and the petitioners consequently shall stand discharged. (JAVED IQBAL WANI) JUDGE Srinagar 09-04-2025 N Ahmad Whether the order is speaking: Yes Whether the order is reportable: Yes Nissar Ahmad Bhat I attest to the accuracy and authenticity of this document 21.04.2025 11:02