GIRDHAR KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) These petitions have already been clubbed together as petitioners, who are revenues officer and beneficiaries of disputed land situated at village Khamba Tehsil Nowshera District Rajouri, have challenged the action of CBI while registering the FIR against them. CRMC No.622/2016

(2.) Through the medium of instant petition filed under Sec. 561-A Cr.P.C., petitioner Girdhar Kumar, the then Naib Tehsildar Nowshera, seeks quashing of FIR No.RC004 2016 A0008/2016 under Sec. 120-B, 420, 467, 468, 471 RPC read with Sec. 5(2) and 5(1)(d) of the J&K Prevention of Corruption Act, 2006, registered by respondent No.1 on 3rd of November, 2016 qua the petitioner.

(3.) Petitioner has stated in the petition that respondent no.2 has been time and again harassing the petitioner by filing successive complaints before different forums including the Vigilance Organization, the respondent no.1, Governor House, etc. In a similar complaint filed before the Vigilance Organization Jammu, this Court in 561-A 354/2012 titled "Girdhar Kumar Versus State through SSP Vigilance Organization, Jammu" has already intervened and restrained the Vigilance Organization from proceeding further; that the Government of J and K has withdrawn its consent u/s 6 and 6A to the respondent no.1 to act and register offences in the State of J&K. Notwithstanding that, respondent no.1 was approached by respondent no.2 with a complaint and he has registered FIR no.08/2016 citing therein that it has been based on source information that too on 28/10/2016 while as the information relates to September 2016 as the petitioner has already represented against the complaint filed by respondent No.2 before respondent no.1. FIR impugned has been filed against the petitioner without any grounds whatsoever. Moreover, respondent no.1 has assumed parallel jurisdiction and has also committed contempt of the interim restraining order passed by this Court; that litigation regarding the land falling in survey numbers in respect of which the respondent no.1 has registered impugned FIR were subject matter of Other Writ Petition No.592/1994 titled "Billo Devi Versus Union of India"; LPA (OW) No.192/1998 titled "Union of India Versus Billo Devi" and SLP No.478/2000 titled "Union of India Versus Billo Devi" wherein the Union has unequivocally accepted that the land falls within a kilometer of the Line of Control and nowhere till Supreme Court it has been contested that the said land was occupied by Pakistan. Moreover, Policy has also been framed on the basis of SLP No.478/2001 and contrary to all the facts submitted, the impugned FIR is wholly illegal, arbitrary and malafide exercise of power, as such, an abuse of process of the Court, hence instant petition. It is further stated that the FIR impugned has been registered against four persons including a dead person, who has been cited as beneficiary of the amount of land rent compensation received; that Kamal Singh, deceased, was the co sharer of land falling in survey nos.1497 to 1514 measuring 285 kanals 09 marlas in Village Khamba, Tehsil Nowshera, Rajouri. That the petitioner, a retired public servant filed a petition under identical provisions of law under Sec. 561-A No.587/2016, but the same has been withdrawn on 21/11/2016 with liberty to file fresh one with better particulars. That respondent No.1, motivated by ulterior considerations and in contravention to the judgment passed by this Court in OWP No.592/1994 upheld by the Division Bench of this Court as well as the Supreme Court in Special Leave Petition No.478/2001, has lodged FIR; that pursuant to the SLP no. 478/2001 titled "Union of India Versus Billo Devi" recommendations were made by the GOC 25 Inf. Div on the Board Proceedings for requisition of land falling in survey nos.1497 to 1514 in village Khamba measuring 258 kanals 13 marlas, Tehsil Nowshera, Rajouri. Moreover, the GOC, 16 Corps also agreed with the recommendations of GOC 25 Inf. Div and Director, Defense Estates requested for issuance of ex post facto administrative sanction in compliance with the Court directions where after requisition order was passed by the Deputy Commissioner, Rajouri on 18.12 2002. It is further stated that afore stated requisition cleared the entire issue and land rent compensation was thereafter disbursed to eligible persons. Moreover, there were three co-sharers in the land and respondent no.1 has booked only a deceased person in the alleged issue and disbursal of compensation has never been challenged in any court of law till date; that respondent no.2 has been lodging various complaints against the petitioner in different forums that include the Vigilance Organization, Jammu, the Governor's Secretariat and the Central Bureau of Investigation in addition to filing similar complaints before the local police. It is submitted that respondent no.2 has already in the year 2003 lodged a false and frivolous complaint against the petitioner and others before the VOJ which, though erroneously, culminated in filing of challan pursuant to which trial is pending before the court of learned Additional Sessions Judge, Rajouri. Moreover, respondent no.2, in the year 2011, initiated another complaint against the petitioner and others which was got marked by the Court of Additional Sessions Judge Anti Corruption, Jammu but the High Court has restrained the Vigilance Organization Jammu from proceeding further in the said complaint. The impugned FIR No.RC004 2016 A0008/2016 under Sec. 120-B, 420, 467, 468, 471 RPC read with Sec. 5(2) and 5(1)(d) of the J&K Prevention of Corruption Act, 2006, lodged by CBI has been challenged on following grounds;-