PREM NATH Vs. STATE OF JAMMU & KASHMIR

JUDGEMENT

(1.) The petitioners have filed the instant writ petition challenging FIR No. 5 of 2010 for offences under Ss. 120B, 167-a, 420-RPC read with Sec. 5(1)(d) and 5(2) of Jammu and Kashmir P.C. Act registered with Police Station, Vigilance Organization, Jammu.

(2.) As per contents of the impugned FIR, a Joint Surprise Check (JSC) was conducted by the Vigilance Organization into the allegations of construction of substandard overhead tank at Dok Paloura, Jammu during the period 2006 to 2009 which is stated to have collapsed in the month of June, 2009. According to the impugned FIR, during the Joint Surprise Check, it was found that the Chief Engineer, PHE Department, Jammu had allotted the work of construction of overhead tank at Dok Paloura, Jammu to Sh. Janak Raj Gupta contractor in the year 2004 at the estimated costs of 15.49 lacs. The work was started in the year 2006 and completed in the year 2009. The overhead tank in the process of its commissioning in the month of June, 2009 collapsed. It is alleged that the substandard material was used in the construction of overhead tank and the work was not executed as per the specifications mentioned in the allotment order which resulted into collapsing of the overhead tank. According to the impugned FIR, a part payment of Rs.10.85 lacs was found to have been released in favour of the contractor. The impugned FIR goes on to allege that petitioner No.1, the then Executive Engineer, in league with petitioner No.2, the then Assistant Executive Engineer, petitioner No.3, the then Jr. Engineer PHE Sub Division No.1, petitioner No. 4, the then Assistant Executive Engineer, Jammu and Contractor Janak Raj Gupta, under a well-knit conspiracy by abusing their official positions, had authorized payment in respect of the contract for execution of work that was not carried out in accordance with the contract thereby causing huge loss to the State exchequer. The FIR further goes on to allege that, prima facie, the petitioners and the contractor Janak Raj Gupta have committed offences punishable under Ss. 120B, 167A, 420A RPC read with Ss. 5(1)(d) and 5(2) of the J&K P.C Act .

(3.) The petitioners have challenged the impugned FIR on the ground that a Departmental Enquiry was conducted into the same allegations in which the petitioners have been exonerated and no culpability on their part was found. It has been contended that the contract was awarded to the co-accused Janak Raj Gupta on turn-key basis and the project was not handed over by the contractor to the Department at the time when the mishap took place. As such, the petitioners cannot be roped in as co-accused for no fault of theirs, when the whole fault lies upon the shoulders of the contractor. It has been further contended that the petitioners have authorized payment of only Rs.9.25 lacs in favour of the contractor against a bill of Rs.10.85 lacs and Rs.1.60 lacs have been withheld. Thus, according to the petitioners, there has been no loss to the State exchequer, particularly when the contractor, as per the terms of the contract, was to reconstruct the overhead tank because the mishap took place during the warranty period. It has also been contended that before registering the impugned FIR, the Vigilance Organization has not conducted any preliminary verification into the allegations and without undertaking such an exercise, it was not open to the Vigilance Organization to register the impugned FIR. It is further contended that the impugned FIR has been lodged after a delay of eight and a half months and there is no explanation on the part of the Vigilance Organization for this delay.