Erroneous Exercise Of Power By Revenue Officials Cannot Be Converted Into Criminal Case Without Evidence Of Corrupt Intent: J&K&L High Court

The Court observed that an error in the exercise of quasi-judicial power and a dishonest abuse of that power occupy distinct fields, and the former cannot, without the additional element of culpable intent, be equated with the latter.

The Court was hearing a batch of petitions challenging FIR registered by the Anti-Corruption Bureau, Jammu, under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act, SVT. 2006 and Section 120-B RPC, along with the consequent charge sheet.

A Bench of Justice Sanjay Parihar, while allowing the petitions, observed,

"The distinction is fundamental: an erroneous exercise of statutory or quasi-judicial power may expose the order to correction in accordance with the remedies provided by law, but criminal liability requires the additional element of culpable intent contemplated by the penal provision. In the absence of material disclosing such intent, the legality of an adjudicatory order cannot, merely by reason of a competing interpretation of the governing statute, be transformed into a criminal offence."

The Court further observed,

"There must exist material, independent of the alleged legal error, from which the requisite dishonest or corrupt intent can prima facie be inferred."

The prosecution case was that the then Settlement Officer, in conspiracy with other accused Revenue Officials, illegally attested Mutations under Section 121 of the J&K Land Revenue Act during settlement operations, thereby conferring rights upon the petitioners in respect of land situated at Tehsil Bari Brahmana. According to the prosecution, the mutations were attested in violation of Section 28-A of the Agrarian Reforms Act and Government Order S-432 of 1996.

The prosecution maintained that Section 28-A prohibited transfer or alienation of land vested in the erstwhile owners under the Agrarian Reforms Act, and that similar restrictions operated in respect of land covered by Government Order S-432 of 1996. It was further alleged that, instead of attesting a mutation for the village as a whole during settlement operations, three separate mutations were attested in favour of the beneficiaries, indicating a concerted exercise of official authority to confer an undue benefit, besides causing loss to the State exchequer on account of non-payment of stamp duty.

The petitioners contended that the transfer in their favour was by way of an oral gift which came to be recognised during Bundobust in 2005, and that the erstwhile owners had not disputed the transfer or questioned the mutations on the ground of illegality. Reliance was also placed on the order passed by the Divisional Commissioner, Jammu, whereby the mutations were left undisturbed while directing recovery of the requisite stamp duty and associated charges, which the petitioners claimed to have deposited.

Court's Observation

The High Court examined the substance of the prosecution case and noted that the controversy was not one of inherent lack of authority in the officer who attested the mutations, but related to the scope of the power exercisable during settlement and whether Section 121 permitted recognition of the rights claimed by the beneficiaries.

The Court observed that the mutations were attested by the Settlement Officer during settlement operations, and by virtue of SRO 314 dated 27.07.1999, the concerned Revenue Officers had been vested with powers for preparation and revision of the record of rights under the Land Revenue Act.

"An investigating agency may certainly investigate a statutory or quasi-judicial act where there is material suggesting that the power was exercised dishonestly, corruptly or pursuant to a criminal conspiracy. It cannot, however, substitute its own interpretation of the statutory provision for that of the competent authority and, on that basis alone, convert an allegedly erroneous exercise of statutory jurisdiction into criminal misconduct.", Justice Parihar remarked.

The Court noted that no allegation of payment or acceptance of illegal gratification had been attributed to the petitioners or the Revenue Officers, and that the foundation of the prosecution was essentially the alleged impermissibility of the mutations under Section 121, the applicability of Section 28-A of the Agrarian Reforms Act and the consequential non-payment of stamp duty. It observed that the issue concerning stamp duty stood on a distinct footing, as the Divisional Commissioner, while declining to interfere with the mutations, had directed recovery of the deficient stamp duty and associated charges.

Dealing with the legal effect of mutation entries, the Court recorded,

"In the decision reported as (1996) 6 SCC 223, the Supreme Court held that mutation of property in the revenue record neither creates nor extinguishes title and is essentially relevant for fiscal purposes, including collection of land revenue. The same principle was reiterated in the decision reported as (2015) 14 SCC 784."

The Court also addressed the contention that the filing of the charge sheet during the pendency of the petitions had rendered them ineffective, observing,

"The subsequent filing of a final report does not, by itself, denude this Court of its jurisdiction to examine the legality of the criminal proceedings. Where the foundational allegations, even when taken at their face value, do not disclose the ingredients of the offence alleged, the Court is not precluded from exercising its jurisdiction merely because investigation has culminated in presentation of the charge-sheet."

The Court relied upon C.K. Jaffer Sharief v. State (Through CBI) (2013) 1 SCC 205, and observed that violation of prescribed procedure, coupled with resulting pecuniary advantage, would not by itself satisfy the ingredients of criminal misconduct. The Court also referred to a Coordinate Bench decision reported as JKI Online 88119, wherein it was held that non-adherence to procedures and technical guidelines could at best give rise to a cause for initiating a regular departmental enquiry, but not a criminal prosecution.

"For an offence of conspiracy, there must be material from which an agreement or meeting of minds to commit an illegal act, or a legal act by illegal means, can prima facie be inferred. Such an inference cannot rest merely upon the fact that the petitioners derived a benefit from orders passed by the Revenue Officers in exercise of their statutory powers.", the bench expounded.

Significantly, the Court opined,

"Once the statutory appellate authority has sustained the mutations, the investigating agency's contrary understanding of the scope of Section 121 cannot, in the absence of independent material disclosing corrupt intent or conspiracy, constitute the sole foundation for criminal prosecution. In case the plea of respondents is taken to be legally tenable, then the appellate/revisional authority too needs to be put to prosecution."

Holding that criminal process cannot be employed to substitute the statutory mechanism provided for correction of an allegedly erroneous revenue adjudication the court said that where the foundational facts, even if accepted as alleged, do not disclose the essential ingredients of the offences invoked, continuation of such proceedings would amount to an abuse of the process of law."

Thus the court allowed the petitions and quashed the criminal proceedings.

Case Title: Abdul Hamid and Others v. UT of Jammu and Kashmir

Citation: 2026 LiveLaw (JKL) 326

Appearances

Petitioners: Mr. P.N. Raina, Sr. Advocate; Mr. J.A. Hamal, Advocate; Mr. Rahul Raina, Advocate

Respondents: Mr. P.D. Singh, Dy. AG

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