No Distinction Between Retired & Inservice Employees For Prosecution Under Jammu & Kashmir Prevention Of Corruption Act: High Court

The Jammu and Kashmir and Ladakh High Court has made it clear that even retired employees of a Public Corporation can be be prosecuted under the Jammu & Kashmir Prevention of Corruption Act, if the circumstances so warrant.

Justice Javed Iqbal Wani observed that Section2(2)(c) of the Act, which defines 'Public Servant', is wide enough to include inservice as well as retired officer/servants/ member of the Corporation.

The bench was hearing challenge to proceedings under J&K Prevention of Corruption Act, made by a retired employee of the J&K Small Scale Industries Development Corporation.

Senior Advocate Sunil Sethi for the Petitioner contended that provisions of J&K PCA could not be not attracted against petitioner since he had already retired. Further, the FIR came to be registered without holding of a preliminary inquiry, mandatorily to be conducted in cases of misconduct or of corrupt practice.

Senior AAG Monika Kohli contended that the impugned FIR has been registered validly in terms of the Act, for commission of offences covered in the FIR, notwithstanding his retirement as an employee of the Corporation.

Justice Wani observed that the rules of interpretation are amply clear that in case a section is susceptible to two interpretations, then the one that defines cause of the Act is to be preferred and an interpretation that leads to absurd results has to be avoided in a given case.

Pointing out to the fact that the petitioner has been an officer/servant/member of a corporation, the bench said that in view of the aforesaid position of law qua interpretation of a statute, the claim of the petitioner that he cannot be subjected to the provisions of the Act after his retirement is misconceived as the plain reading of Section 2(2)(c) of the Act ex facie suggest that the same is wide enough to include inservice as well as retired officer/servants/ member, of a corporation as said clause does not make any such distinction.

"Furthermore, one has to see the status of the officer/servant/member of a corporation at the time of the commission of the act complained of, as otherwise any other meaning would result into absurdity", the bench added.

However, the bench relied on Charan Singh vs State of Maharashtra where the Supreme Court held that it is permissible and desirable to hold an inquiry first in case where the allegations are of misconduct, of corrupt practice, before registration of an FIR- in order to ascertain as to whether on the basis of material collected during such an enquiry, there is substance in the allegations levelled.

Applying the said ratio to the instant case, Justice Wani observed that the respondents have admittedly not conducted any preliminary enquiry in line but have straightaway proceeded to register the impugned FIR.

"Had the respondents followed the mandate of law laid down by the apex court in the judgment supra, possibly the situation would have been different and the impugned FIR would not have come into being as the impugned FIR is 3rd in succession registered by the respondent against the petitioner and broadly with the same and similar allegations against the petitioner," the bench underscored.

Thus bench quashed the impugned FIR.

Case Title: Bopinder Singh Dua Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 62

Coram: Justice Javed Iqbal Wani

Counsel For Petitioner: Mr. Sunil Sethi, Senior Advocate Mr. Parimoksh Seth, Advocate.

Counsel For Respondent: Ms. Monika Kohli, Sr. AAG.

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