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Dr. Ghulam Mahi-ud-dIn Vs. Anti-corruption Commission and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1968CriLJ1074
AppellantDr. Ghulam Mahi-ud-din
RespondentAnti-corruption Commission and ors.
Cases ReferredIn Angnoo Singh v. King Emperor
Excerpt:
- .....against the petitioner be quashed. it is further averred that the provisions of the jammu and kashmir government servants prevention of corruption (commission) act, 1962 being more drastic than the public servants (enquiries) act, 1977, the jammu and kashmir civil services (disciplinary proceedings tribunal) rules, 1958 and the kashmir civil service (classification, control and appeal) rules, 1956, the enquiry against the petitioner is discriminatory and violative of article 14 of the constitution of india and thus liable to be quashed. the petition came up before a single judge of this court and was referred to division bench on 7th march, 1967. thereafter it was referred to the full bench in view of certain observations made in the full bench case mr. m. s. farooqi v. chairman.....
Judgment:

J.N. Wazir, C.J.

1. This is a writ petition under Section 103 of the Jammu and Kashmir Constitution and Article 32(2-a) of Constitution of India filed by Dr. Ghulam Mohi-ud-Din Director Animal Husbandry, Jammu and Kashmir State praying that the order of the Anti Corruption Commission dated 5th October, 1966 framing the articles of charges against the petitioner be quashed. It is further averred that the provisions of the Jammu and Kashmir Government Servants Prevention of Corruption (Commission) Act, 1962 being more drastic than the Public Servants (Enquiries) Act, 1977, the Jammu and Kashmir Civil Services (Disciplinary Proceedings Tribunal) Rules, 1958 and the Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956, the enquiry against the petitioner is discriminatory and violative of Article 14 of the Constitution of India and thus liable to be quashed. The petition came up before a Single Judge of this Court and was referred to Division Bench on 7th March, 1967. Thereafter it was referred to the Full Bench in view of certain observations made in the Full Bench Case Mr. M. S. Farooqi v. Chairman Anti-Corruption Commission AIR 1967 J and K 37 FB, regarding Article 14 of the Constitution of India after comparing the provision of the Jammu and Kashmir Government Servants Prevention of Corruption (Commission) Act, 1962 with those of the All India Services (Discipline and Appeal) Rules, 1955.

2. The facts which gave rise to this petition briefly stated are these:

The Deputy Inspector General, Anti-Corruption Organization by his letter No. 668 dated 8-5-1964 laid information against respondent No. 2, Shri Ghulam Rasul Anwari, Manager Milk Supply Scheme Cheshmashahi, Srinagar and others alleging corruption against them. On receipt of that letter the Anti Corruption Commission registered a case as No. ACC (C-89) 64 and directed investigation to be made by the Investigating Agency on 9th May, 1964. On 13th May, 1964 the Commission received a copy of an application purporting to be by one Shri Ghulam Mohd. Ganai under endorsement of the P. A. to the Prime Minister containing several allegations of corruption against the officers of the Srinagar Milk Supply Scheme as well as against the Director Animal Husbandry petitioner before us. The commission summoned Shri Ghulam Mohd. Ganai for the purpose of verification of his complaint and for recording his statement. He appeared in response thereto but disowned the said application. The commission then treated the disowned application as 'anonymous information' and registered that information as case No. ACC (C-101) 64 and directed investigation to be made by the same Investigating Agency as had inquired into similar allegations against respondent No. 2 and other for the purpose of ascertaining the truth or falsehood of the allegations. The Deputy Inspector General Anti Corruption Organization, hereinafter to be called the Deputy Inspector General submitted a common report in both the cases to the Commission on 20th July, 1965. The Commission considered that report of the Deputy Inspector General and examined the documents and came to the conclusion that a prima facie case was made out against respondent No, 2 and five others and in exercise or its power under Section 12 (4) of the Act framed articles of charges against them on 24th June, 1966, almost a year after the D. I. G., had submitted his report.

It appears that no action was at that stage taken against the petitioner and inquiry against respondent No. 2 and others proceeded. A large number of witnesses were examined by the prosecution and the petitioner was cited as a prosecution witness. On the 16th of September, 1966 the Commission at the instance of the prosecution summoned the petitioner as a prosecution witness for 17th September, 1966. The petitioner on account of official engagement could not appear and requested that he might be examined on the 19th of September, 1966. On the 17th September, 1966 an application was moved by respondent No. 2 before the Commission that the petitioner should also be charged for acts of corruption because the prosecution evidence disclosed his involvement. The Government counsel in his reply to the application of respondent No, 2 for arraigning the petitioner as an accused stated that the Commission had already called the petitioner as a prosecution witness and his evidence was very material to the case. The objection raised by the counsel for the prosecution was overruled and it was ordered on 5th October, 1966 that the petitioner be arraigned as an accused. The Commission framed articles of charges against the petitioner. In the charges framed against the petitioner it was mentioned that the responsibility of the petitioner in the case was kept open for the present and had to be considered after the enquiry in the case was completed. It was further mentioned in the charges that on 17th September Mr. Ghulam Rasul Anwari made an application that some of the prosecution witnesses had deposed about the complicity of the petitioner in various acts, therefore, he was charged for such acts of corruption as were prima facie made out against him. On 27th October, 1966 objections were raised by the petitioner before the Commission which were also overruled. Hence this writ petition.

3. It is contended on behalf of the petitioner that he should have been proceeded against under the Public Servants (Enquiries) Act, 1977 the Jammu and Kashmir (Disciplinary Proceedings Tribunal) Rules, 1958 or the Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956. It is submitted that the provisions of the Jammu and Kashmir Government Servants Prevention of Corruption (Commission) Act, 1962 are more drastic and greatly prejudicial to the interests of the petitioner when compared with similar provisions contained in the abovementioned Act and the Rules and the impugned enquiry is thus discriminatory and violative of Article 14 of the Constitution of India.

4. The contention that the petitioner could have been proceeded against under the Jammu and Kashmir Civil Services (Disciplinary Proceedings Tribunal) Rules, 1958, is not correct. It appears to be based on a misconception of the true legal position. The Civil Services (Disciplinary Proceedings Tribunal) Rules have undergone drastic changes as a result of the amendment brought about by SRO. 180 dated 19th April, 1963. The first change made by the amendment made under the Rules making control of the State Government is the omission of Clause (c) of rule 1 according to which rules apply to all officers. Another noticeable change is that made in rule 4 whereby the power of reference to the Disciplinary Proceedings Tribunal was to some extent restricted. Rule 4 of the said Rules after its amendment reads as under:

4 (1). The Government shall subject to the provisions of rule 5 refer the following cases to the Tribunal namely:

(a) cases relating to (Government Servants of non-gazetted cadre, other than those to whom the Government Servants Prevention of Corruption (Commission) Act, 1962 applies) in respect of matters involving corruption on the part of such Government Servants in the discharge of official duties;

(b) all appeals or petitions to the Government against orders passed on charges of corruption in respect of Government servants mentioned in Clause (a) and all disciplinary cases in which the Government propose to revise original orders passed on such charges:

Provided that it shall not be necessary to consult the Tribunal (i) in any case in which the Tribunal has, at any previous state, given advice in regard to the order to be passed and no fresh question has thereafter arisen for determination; or (ii) where the Government propose to pass orders rejecting such appeal or petition.(2) The Government may, subject to the provisions of rule 5, also refer to the Tribunal any other case or class of cases which, they consider should be dealt with by the Tribunal.

According to the amended R. 4 (1) of the said Rules the Government with effect from the 19th of April, 1963 can refer to the Disciplinary Tribunal only the cases of those Government Servants of Non-gazetted cadre to whom the Government Servants Prevention of Corruption (Commission) Act, 1962 does not apply. As the acts attributed to the petitioner involve corruption on the part of the Government servant in the discharge of his duties and fall within the sweep of the Government Servants Prevention of Corruption (Commission) Act, 1962, the case could not be referred to and be dealt with by the Disciplinary Proceedings Tribunal as it now exists.

5. The other contention that the case of the petitioner can be dealt with under the provisions of the Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 is also without any substance. These Rules are general in character. According to Section 124 of the Constitution of Jammu and Kashmir they regulate the conditions of service until provision in that behalf was not made by or under an Act of the legislature. A reference to Section 124 of the State Constitution would show that these rules are subject to the provisions of any legislation that may be made by the Legislature. As a special enactment in the form of the Jammu and Kashmir Government Servants Prevention of Corruption (Commission) Act 1962, has been made by the Government under Section 124 of the State Constitution the Kashmir Civil Service Classification, Control and Appeal) Rules, 1956 Stand superseded to some extent and cannot be invoked in respect of acts of corruption as conceived by the Act. On general principles of law also where there are two provisions one more general and the other more particular and specific the latter ought to be applied, vide AIR 1965 Mys 237, in which it has been held:

It is well established that where there are two articles which may possibly govern a case, the one more general and the other more particular and specific, the latter Article ought to be applied.

6. It is further contended on behalf of the petitioner that the petitioner ought to have been proceeded against under the provisions of the Public Servants (Inquiries) Act, 1977 and not under the Jammu and Kashmir Government Servants Prevention of Corruption (Commission) Act, 1962. A reference to Section 24 of the Public Servants (Inquiries) Act would show that the inquiry under the Act is not compulsory. In the case S. A. Vankataraman v. Union of India : 1954CriLJ993 , it has been held that an enquiry under the Public Servants (Enquiries) Act is not at all compulsory and it is open to the Government to adopt any other method if it so chooses. In that case their Lordships of the Supreme Court have observed as follows:

As the Law stands at present, the only purpose, for which an enquiry under the Public Servants (Inquiries) Act, 1850, can be made is to help the Government to come to a definite conclusion regarding the misbehaviour of a public servant and thus enable it to determine provisionally the punishment which should be imposed upon him prior to giving him a reasonable opportunity of showing cause, as is required under Article 311(2) of the Constitution. An enquiry under this Act is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses. It is matter of convenience merely and nothing else.

7. The contention that the Jammu and Kashmir Government Servants Prevention of Corruption (Commission) Act, 1962 is hit by Article 14 of the Constitution is also untenable. The impugned Act which is designed to meet the increasing tempo of corruption amongst the public servants makes a reasonable and valid classification. It particularizes the case which can be taken cognizance of by the Commission. It specifies the characteristics which are peculiar to a certain class of Government servants which is clearly defined and observes equality between all persons on whom it is to operate. It does not treat differently the Government servants similarly situate. The learned Counsel for the petitioner relied upon a ruling of the Supreme Court in State of West Bengal v. Anwar Ali Sarkar : 1952CriLJ510 . This ruling is by no means helpful to him inasmuch as in that case no attempt was made to particularize and classify offences to which the West Bengal Special Courts Act would apply. It has been observed in that ruling:

The Act itself lays down a procedure which is less advantageous to the accused than the ordinary procedure, and this fact must in all cases be the root-cause of the discrimination which may result by the application of the Act. Speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offences or cases. The necessity of a speedy trial is too vague uncertain and. elusive criterion to form the basis of a valid and reasonable classification.

A reference to the ruling in Kathi Raning Rawat v. State of Saurashtra, : 1952CriLJ805 , which is more pertinent, would show that Section 11 of the Saurashtra Public Safety Measures (Third Amendment) Ordinance which provides that a special judge shall try such offences or class of offences or such cases or class of cases as Saurashtra Government may, by general or special order direct in that behalf was upheld. It was observed by their Lordships of the Supreme Court in that case:

A legislature for the purpose of dealing with complex variety of human relations, cannot but proceed upon some sort of election or classification or persons upon whom the legislation is to operate. The consequence of such classification would undoubtedly be to differentiate the persons belonging to that class from others, but that by itself would not make the legislation obnoxious to the equal protection clause. Equality prescribed by the Constitution would not be violated if the statute operates equally on all persons who are included in the group and the classification is not arbitrary or capricious, but bears a reasonable relation to the objective which the legislation has in view.

It would be noted that the Ordinance was promulgated to combat the increasing tempo of certain types of regional crimes such as, looting, robbery, dacoity, murder, etc., as the previous legislation was considered ineffective. Again in the case of Ram Krishna Dalmia : [1959]1SCR279 , which is a classical case having bearing on Article 14 the Constitutional position has been succinctly summarised at page 547;-

It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification must be founded on different bases, namely geographical, or according to the objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.

The contention that since the provisions of the impugned Act are harsh the Act is bad and unconstitutional is equally devoid of force. The State of Orissa v. Dhirendranath Dass AIR 1961 Supreme Court 1715, relied upon by the learned Counsel for the petitioner would show that it was based upon concession of the counsel appearing on behalf of the State. In that case enquiry was held under the Disciplinary Proceedings (Administrative Tribunal) Rules. These Rules were more drastic than the Bihar and Orissa Subordinate Services Discipline and Appeal Rules (1935). It was held in that case as under:

If against two public servants similarly circumstanced enquiries may be directed according to the procedure substantially different at the discretion of the Executive authority, exercise whereof is not governed by any principles having any rational relation to the purpose to be achieved, the order selecting a prejudicial procedure, out of the two open for section, is it by Article 14 of the Constitution.

In another case Jagannath Prasad Sharma v. State of Uttar Pradesh : (1961)IILLJ166SC , reference was made to AIR 1961 SC 1715, and it was observed as follows:

It was open to the Government of Orissa to select either set of rules for enquiry against any public servant against whom a charge of misdemeanour was made and that selection of one in preference to the other set of rules was violative of the guarantee of Article 14 of the Constitution.

It was further observed in that case:

The fact that an order made by a police authority in an enquiry under U. P. Police Regulations is made appealable whereas the order passed by the Governor in an enquiry under U. P. Disciplinary Proceedings (Administrative Tribunal) Rules 1947 is not made appealable is not a ground on which the validity of the Tribunal Rules can be challenged. In either case, the final order rests with the Governor who has to decide the matter himself. Equal protection of laws does not postulate equal treatment of all persons without distinction; it merely guarantees the application of the same laws alike and without discrimination to all persons similarly situated.

In S. Kapur Singh v. Union of India : [1960]2SCR569 , it has been held that an inquiry under one of the two alternative methods in respect of a public servant does not violate the equal protection clause of the Constitution. In that case the provisions of the Public Servants (Inquiries) Act and Rule 55 of the Civil Services (Classification, Control and Appeal) Rules were compared and it was held that the procedure prescribed by the Public Servants (Inquiries) Act and that provided by R. 55 of the Civil Services (Classification, Control and Appeal) Rules was not materially different. If we compare the provisions contained in the impugned Act with those contained in the Public Servants (Inquiries) Act, Civil Services (Classification, Control and Appeal) Rules or the Civil Services (Disciplinary . Proceedings Tribunal) Rules in the instant case we would find that the procedure laid down in all these is substantially the same. In Amarendra Nath Roy v. The State : AIR1955Cal236 , it was observed:

It cannot be held that the State makes a discrimination between different persons of the same category when it chooses to prosecute some under Sec, 409 of the Penal Code and others committing the same act under Section 5 (2) of the Prevention of Corruption Act. The Prevention of Corruption Act although it does not expressly lay down any basis for classification does by implication in its various provisions lay down a line of classification of offenders who are to be prosecuted under that Act.

8. In a case reported as AIR 1955 Punj 1 where a public servant was proceeded against under the Punjab Civil Services Rules, Appendix 24 and not under the Public Servants (Inquiries) Act it was held that there was no contravention of Article 14 of the Constitution. Reference may also be made to : 1957CriLJ605 , in which the Criminal Law Amendment Act providing for trial of cases of corruption was upheld and it was held that the persons who were charged with offence of corruption formed a class by themselves. This ruling was followed by the Andhra Pradesh High Court in : AIR1965AP372 . The same view has been taken in Rehman Shagee v. State of Jammu and Kashmir : 1960CriLJ126 wherein the provisions of the Jammu & Kashmir Enemy Agents Ordinance which lay down a drastic procedure and which classify offences rather than persons or things were upheld.

9. The learned Counsel for the petitioner relied upon the decision of this Court in M.S. Farooqi v. Chairman Anti Corruption Commission AIR 1967 J and K 37 (FB), but that ease is distinguishable and has no application to the present case. In that case Mr. Farooqi was a member of the Indian Police Service and it was argued that discrimination had been practised against him inasmuch as any act or omission committed by a member of All India Service elsewhere had to be inquired into under the All India Services (Discipline and Appeal) Rules, 1955 whereas the enquiry against the petitioner in regard to acts of corruption was being held under the Jammu and Kashmir Government Servants Prevention of Corruption (Commission) Act, 1962 which was more drastic than the Rules. The petitioner and the other accused do not belong to All India Services and it has not been shown that persons similarly circumstanced are being dealt with under two sets of rules, one being harsher than the other. Under these circumstances no assistance can be derived from Farooqi's case AIR 1967 J and K 37 (FB) by the petitioner.

10. Lastly, it has been argued that the petitioner was cited by the prosecution and called by the Commission as a witness against respondent No. 2 and others who were being proceeded against for acts of corruption. On the application of one of the accused order was passed by the Commission arraigning the petitioner as an accused. It is contended that the Commission did not give the petitioner any chance of showing that no charge of corruption could be framed against him and that the order arraigning him as an accused without hearing him is detrimental to him and will greatly prejudice his future career. It may be pointed out that the D. I. G., Anti-Corruption Organization was specially asked to inquire into the allegations contained in the application purporting to have been signed by Shri Ghulam Mohd. Ganai. The alleged applicant was sent for and he disowned the application. The D. I. G. enquired into the alleged charges against the petitioner and he submitted a joint report about the petitioner as well as the other accused persons. After examining the report of the D. I. G., and the other documents charges were framed against respondent No. 2 and others. No indication was given at that time to the petitioner that he also will have to answer the charges of corruption. His name was included amongst the prosecution witnesses and the Government Prosecutor opposed the application made by the Respondent No. 2 for arraigning the petitioner as an accused. The Commission fixed 17th September as the date for examining the petitioner as a witness. It is not clear how the Commission changed its mind suddenly notwithstanding the opposition by the prosecution, and ordered that the petitioner be arraigned as an accused. On behalf of the petitioner it was argued that no opportunity was given to him to show that there was not enough material for framing charges against him. The Commission has pointed out that the rule of natural justice does not require that the accused should b* given an opportunity to explain his conduct at every stage.

In our view the petitioner cannot make serious grievance of the fact that he was not given an opportunity to show that no prima facie case was made out for framing charges against him. But we have been impressed by the argument advanced by the learned Counsel for the petitioner that while selecting the petitioner to appear as a prosecution witness against respondent No. 2 and others he should not have been arraigned as an accused with them. It was contended that the Commission after perusal of the report of the investigating authority had treated the case of the petitioner quite differently from that of the other accused and it was highly prejudicial to the interests of the petitioner to try him jointly with the other accused. There is a good deal of force in this contention. The investigation did not disclose the petitioner's involvement in the offence of which the other accused were charged otherwise his name would have been included among the other accused and charges framed against him. It is always open to the Commission after the inquiry is complete against the other accused to proceed against the petitioner if evidence led against the other accused shows some involvement of the petitioner in the offence. But at this stage merely at the instance of respondent No, 2 and others it was not just and proper to frame charges against the petitioner especially when the prosecution had opposed the application of respondent No. 2 in this behalf and further because the Commission had itself directed that the inquiry against the petitioner be postponed until the inquiry against the other accused is completed. Moreover, it was stated by the prosecution that the case against the other accused would greatly suffer if the petitioner was not examined as a witness. It also appears from the charges framed against the petitioner that the allegations against him and others are mutually exclusive. In such circumstances they should not be tried together as allegations against the petitioner do not form part of the same transaction of which the other accused are charged. In Dalsuk Roy v. Emperor AIR 1925 Cal 248, it was held that joint trial of the receiver of the stolen property and of the persons to whom it was sold afterwards is illegal as the acts do not form part of the same transaction. In Angnoo Singh v. King Emperor AIR 1923 All 35, it was observed as follows:

It seems very hard, almost oppressive, to any set of defendants to charge them together unless the whole of the evidence against all of them is precisely the same and they are to be dealt with on the same facts and compel them to fight each his own individual battle during a prolonged enquiry, a great deal of which concerns for the moment only one out of the general body.

In our opinion there is possibility of prejudice to the petitioner in his joint trial with the other accused He is in an unfortunate position of being attacked in front by the prosecution and in the rear by the other accused. We, therefore, allow this writ petition of the petitioner to this extent that We quash the charges framed against him by the Commission at this stage. It will be open to the Commission if any offence is disclosed against the petitioner after completing the inquiry against respondent No. 2 and other accused, to proceed against him in accordance with law. There will be no order as to costs.


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