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J&K Prevention Of Corruption Act | Elaborate Reasons Not Necessary While Issuing Entrustment Orders: High Court

Basit Amin Makhdoomi
5 Aug 2022 12:01 PM GMT
J&K&L High Court Disposes Off PIL Filed By   Kashmiri Pandits Sangarsh Samiti.
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The Jammu and Kashmir and Ladakh High Court on Thursday ruled that merely because elaborate reasons have not been given in the entrustment orders passed by the Superintendent of Police to delegate investigation to an inspector level officer, it cannot be said that the provisions of J&K Prevention of Corruption Act have not been complied with.

A bench comprising Justice Sanjay Dhar was hearing a batch of petitions in terms of which the petitioners had thrown challenge to the registration of FIRs for offences under Section 5(2) of J&K Prevention of Corruption Act and Section 120-B RPC at Police Station Vigilance Organization, Kashmir.

The petitioners in their plea contended that the respondent investigating agency had not adhered to the mandatory provisions of Section 3 of the J&K PC Act as the investigation in all the three impugned FIRs had been handed over to and conducted by a non-designated police officer who was not authorized to conducted investigation of these case.

The petitioners further submitted that the allegations made in the impugned FIRs and the material collected by the investigating agency during investigation of the case do not make out an offence under Section 5(2) of the J&K PC Act against the petitioner as there is no allegation that the petitioners had either obtained any pecuniary benefit for himself or that he has bestowed any such benefit upon a third person.

Dealing with the contention of the petitioner that the provisions contained in Section 5-A of the PC Act of 1947, which is in pari materia with the provisions contained in Section 3 of the J&K PC Act are mandatory, the bench observed that it is amply clear that the officers of the rank of Deputy Superintendent of Police and above have been designated to investigate the offences under the J&K PC Act and in case the police officer is below the rank of Deputy Superintendent of Police, the investigation can be conducted only with the order of a Magistrate of the 1st Class.

Adjudicating upon the other contention of the petitioner that the entrustment order passed under Section 3 of the J&K PC Act authorizing a non-designate police officer to investigate an offence under Section 5 of the said Act has to be well-reasoned, the bench observed that the entrustment order in this matter clearly shows application of mind on the part of the Superintendent of Police, Vigilance Organization, Kashmir.

"He has clearly indicated in the entrustment order the nature of the offence which has to be investigated, the nature of the power which he is exercising as also the fact that the investigation has to be conducted under the supervision of the Superintendent of Police concerned and thus the entrustment order is not an omnibus order nor does it exhibit lack of application of mind on the part of the issuing authority" the bench underscored.

In order to buttress the said position the bench found it worthwhile to record the observations of supreme court in State of M.P and others vs. Ram Singh, (2000) when it was observed

"Even otherwise, it is required to be noted that on a plain reading of the second proviso to Section 3, 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."

Delving further into the subject, Justice Dhar observed merely because elaborate reasons have not been given in the entrustment orders passed by the Superintendent of Police, Vigilance Organization in the subject cases, it cannot be stated that the provisions of second proviso to Section 3 of the J&K PC Act have not been complied with.

Dismissing the petitions and declining to interfere the bench concluded by observing that the orders of entrustment clearly indicate application of mind on the part of the issuing authority, inasmuch it has been alive as to the nature of the cases to be investigated and the nature of authority under which the orders are being issued.

Case Title: Anis Ahmad Chaudhary Vs State of J&K

Citation : 2022 LiveLaw (JKL) 88

Click Here To Read/Download Order


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