Jammu & Kashmir High Court
Munish Bhatia vs Ut Of Jammu And Kashmir on 9 April, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 30.12.2024
Pronounced on: 09.04.2024
CRM(M) 466/2023
CrlM 870/2023
1. Munish Bhatia, age 52 years
S/o Sh. Madan Mohan Bhatia,
R/o 8-A Canal Road, Jammu.
2. Sidharth Bhatia, age 50 years
S/o Sh. Madan Mohan Bhatia,
R/o 8-A Canal Road, Jammu.
... Petitioners/Appellant(s)
Through: Mr. Vishal Goel, Advocate
V/s
UT of Jammu and Kashmir
Through Incharge Police Station ACB, Jammu.
... Respondent(s)
Through: Mrs. Monika Kohli, Sr. AAG
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
09-04-2025
1. The petitioners in the instant petition have invoked inherent
power of this court enshrined in section 482 of the Code of
Criminal Procedure seeking quashing of order dated 12-05-2023
(for short “impugned order”) passed by the Court of Special
Judge, Anti-Corruption Jammu (for short “trial court”) in case
titled as “State versus Satish Khajuria and others” arising out of
FIR no. 2 of 2014, registered by the Anti-Corruption Bureau
(ACB) for commission of offences under section 5(1)(d) read
with section 52 of the Jammu and Kashmir Prevention of
CRM (M) 466/2023 Page 2 of 11
Corruption Act, Samvat 2006 (for short “Act of 2006”) and
Section 120-B of Ranbir Penal Code (for short “RPC”).
2. Factual Background
• The petitioners herein claim to be owners of plot no. 292-A situated
at Gandhi Nagar, Apsara Road, Jammu and assert that they applied
for and came to be granted a building permission by Jammu
Municipal Corporation (for short “JMC”) in the year 2012 to
construct a residential structure, during the raising of the which
construction, certain deviations took place, whereupon noticing the
same, the then Chief Khilafwarzi Officer of the JMC issued a show
caused notice against the petitioners under section 7(1) of the Control
of Building Operations Act 1988 (for short “Act of 1988”) dated 14-
08-2012, alleging therein that the petitioners had begun excavation
for a basement and had not constructed partition walls in the
construction suggesting a possible commercial use of the said
construction and that on the very same date i.e. 14-08-2012, another
notice was issued by the JMC under section 12(1) of the Act of 1988
directing the petitioners herein to discontinue the unauthorizedly
raised construction followed by a demolition order dated 17.12.2012
issued by the JMC under section 7(3) of the Act of 1988.
• The petitioners herein feeling aggrieved of the said demolition order
dated 17-12-2012 supra, filed an appeal under section 13 of the Act
of 1988 before the Jammu and Kashmir Special Tribunal, Jammu on
27-12-2012, which appeal came to be disposed of by the Tribunal on
16.03.2013, holding that the deviations mentioned in the demolition
order are of minor nature and thus directed the regularization of the
same upon payment of prescribed compounding fee by the petitioners,
which the petitioners claim to have deposited before the JMC.
• Meanwhile, on 13-12-2012, an anonymous complaint is stated to have
been lodged before the Vigilance Organization (ACB), Jammu
against the petitioners qua the construction in question resulting into
registration of FIR no. 2 of 2013 dated 9-1-2014 by the ACB against
the petitioners and various officials of JMC, alleging in the said FIR
that the accused JMC officials had facilitated raising of unauthorized
construction by the petitioners and the investigation in the said FIR
CRM (M) 466/2023 Page 3 of 11
culminated into filing of a charge sheet before the trial court on 3-3-
2023 being case titled as “State vs. Satish Khajuria and others“.
• Upon receiving copy of the charge sheet, the petitioners claimed to
have discovered certain crucial documents including the notices
issued under the Act of 1988 not included in the charge sheet, as such,
filed an application before the trial court seeking its leave to place the
said relevant documents on record whereupon the trial court, after
hearing the prosecution, as well as the accused persons including the
counsel for the petitioners in terms of the impugned order framed
charges against the petitioners and other accused persons.
3. The petitioners herein have challenged the impugned order in the
instant petition primarily on two grounds: Firstly, that the alleged
offences contained in the charge sheet are not made out against
them, as the accused officials of the JMC acted within their
statutory mandate under the Act of 1988 in the matter, and
secondly, since the Special Tribunal upon deciding the appeal of
the petitioners had regularized the deviations in the construction
raised by the petitioners treating the same to be minor in nature
and ordered compounding of the same, the very basis of the
charge sheet is thus legally untenable.
4. Reply to the petition has been filed by the respondent herein
wherein the petition is being opposed and resisted on the premise
that the impugned order does not suffer from any illegality or
irregularity and that the charge sheet laid in the matter before the
trial court against the petitioners and other accused persons, in
fact, owes its origin to a verification conducted by the ACB
Jammu upon a complaint whereupon a formal case came to be
registered at P/S ACB Jammu under FIR no. 02 of 2014 and
CRM (M) 466/2023 Page 4 of 11
after concluding the investigation thereof, offence under section
5(1)(d) of the Act of 2006, read with section 120-B RPC was
found to have been committed by the accused persons being the
petitioners herein as well as the officials of the JMC, out of which
official sanction for prosecution was not accorded qua the
accused JMC official Babu Ram, then Joint Commissioner (Adm)
JMC, and another accused namely Satish Khajuria had died after
presentation of the charge sheet.
It is being further stated that the petitioners prior to the
filing of the instant petition had filed CRMC 58 of 2014 before
this court seeking quashing of FIR no. 02 of 2014 which petition,
however, came to be dismissed on 7-9-2018.
It is lastly stated that the petition is groundless and that the
impugned order is perfectly valid and does not call for any
interference by this court.
Heard learned counsel for the parties and perused the record.
5. In the first instance, it would be appropriate to refer to the
provisions of Section 5(1)(d) read with section 5 (2) of the Act of
2006 as also Section 120-B of RPC.
5. Criminal misconduct. (1) A public servant is said to commit the
offence of criminal misconduct-
(a) . . . . . . . . . .
(b) . . . . . . . . . .
(c) . . . . . . . . . .
(d) if he, by corrupt or illegal means or by otherwise abusing his
position as public servant, obtains for himself or for any other person
any valuable thing or pecuniary advantage:
(e) . . . . . . . . . .
CRM (M) 466/2023 Page 5 of 11
[Explanation-For the purposes of this section, “known sources of
income” means income received from any lawful source when
such receipt has been intimated in accordance with the provisions
of any law, rules or orders for the time being applicable to a public
servant].
[(1-A)
(2) Any public servant who commits any offence of criminal
misconduct as referred to in clauses (a), (b) and (e) of sub-section (1),
shall be punishable with imprisonment for a term which shall not be
less than 2 years but which may extend to seven years and shall also
be liable to fine and if he commits criminal misconduct as referred to
in clauses (c) and (d) of sub-section (1) shall be punishable with
imprisonment for a term which shall not be less than one year but
which may extend to five years and shall also be liable to fine.
A plain reading of Section 5(1)(d) of the Act of 2006 reveals
that the essential ingredients of the offence are:
i. The accused must be a public servant;
ii. He must have used corrupt or illegal means or otherwise
abused his official position; andiii. He must have obtained for himself or any other person
a valuable thing or pecuniary advantage.
The phrase “abuse of his position as a public servant”
implies an act that deviates from the conduct of a prudent officer-
one who disregards established statutory rules and procedures to
favour a third party, thereby obtaining an undue benefit for them.
Further, the use of the expressions “corrupt or illegal
means” or “otherwise abusing his position as a public servant”
indicates the necessity of a dishonest element in the conduct of
the public servant. The phrase “otherwise abusing his position as
a public servant” must be interpreted in conjunction with “corrupt
or illegal means,” meaning that mere procedural lapses or
administrative negligence without dishonest intent do not
constitute an offence under Section 5(1)(d). For the provision to
CRM (M) 466/2023 Page 6 of 11
be attracted, there must be a dishonest intention, which can only
be inferred from the facts and circumstances of each case.
Section 120-B of RPC reads as follows:
“Section 120-B Punishment of criminal conspiracy:
(1): Whoever is a party to a criminal conspiracy to commit an offence
punishable with death, imprisonment for life or rigorous imprisonment
for a term of two years or upwards, shall, where no express provision is
made in this Code for the punishment of such a conspiracy, be punished
in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal
conspiracy to commit an offence punishable as aforesaid shall be
punished with imprisonment of either description for a term not
exceeding six months, or with fine or with both.”
Insofar as the offense of criminal conspiracy punishable
under section 120-B RPC supra is concerned, a plain reading
thereof reveals that there must be an agreement between two or
more persons to commit an illegal act or to use illegal means to
achieve a lawful act and the means adopted and the illegal acts
done must be in furtherance of the object of the conspiracy.
6. Before proceeding further in the matter, it would be appropriate
and advantageous to refer to the judgment of the Apex Court
passed in case titled as “Ram Prakash Chadha vs. State of Uttar
Pradesh” reported in (2024) 10 SCC 651, pertaining to the
Discharge or Framing of Charge inasmuch the offence of criminal
conspiracy being relevant and germane to the issues involved in
the instant petition.
The Apex Court in the judgment supra in this regard, at
paras 22, 23, 24 and 25 held as under:
22. In P. Vijayan v. State of Kerala and Anr.6, after extracting Section
227, Cr.PC, this Court in paragraph No.10 and 11 held thus:
“10 ….If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the trial
CRM (M) 466/2023 Page 7 of 11Judge will be empowered to discharge the accused and at this
stage he is not to see whether the trial will end in conviction or
acquittal. Further, the words “not sufficient ground for
proceeding against the accused” clearly show that the Judge is
not a mere post office to frame the charge at the behest of the
prosecution, but has to exercise his judicial mind to the facts of
the case in order to determine whether a case for trial has
been made out by the prosecution. In assessing this fact, it is not
necessary for the court to enter into the pros and cons of the
matter or into a weighing and balancing of evidence and
probabilities which is really the function of the court, after the
trial starts.
11. At the stage of Section 227, the Judge has merely to sift the
evidence in order to find out whether or not there is sufficient
ground for proceeding against the accused. In other words, the
sufficiency of ground would take within its fold the nature of the
evidence recorded by the police or the documents produced
before the court which ex facie disclose that there are
suspicious circumstances against the accused so as to frame a
charge against him.”
23. In para 13 in P. Vijayan‘s case (supra), this Court took note of
the principles enunciated earlier by this Court in Union of India v.
Prafulla Kumar Sama which reads thus:
“10…. (1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has the
undoubted power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case against
the accused has been made out.
(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly
explained the Court will be fully justified in framing a charge and
proceeding with the trial.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay down
a rule of universal application. By and large however if two views
are equally possible and the Judge is satisfied that the evidence
produced before him while giving rise to some suspicion but not
grave suspicion against the accused, he will be fully within his
right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the
Code the Judge which under the present Code is a senior and
experienced court cannot act merely as a post office or a
mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and the
documents produced before the Court, any basic infirmities
appearing in the case and so on. This however does not mean
that the Judge should make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial.”
CRM (M) 466/2023 Page 8 of 11
24. In the light of the decisions referred supra, it is thus obvious that
it will be within the jurisdiction of the Court concerned to sift and
weigh the evidence for the limited purpose of finding out whether
or not a prima facie case against the accused concerned has been
made out.
25. Even after referring to the aforesaid decisions, we think it
absolutely appropriate to refer to a decision of the Madhya Pradesh
High Court in Kaushalya Devi v. State of MP. It was held in the said
case that if there is no legal evidence, then framing of charge would
be groundless and compelling the accused to face the trial is
contrary to the procedure offending Article 21 of the Constitution
of India. While agreeing with the view, we make it clear that the
expression ‘legal evidence’ has to be construed only as evidence
disclosing prima facie case, ‘the record of the case and the
documents submitted therewith’.
7. Insofar as the offence punishable under section 120-B RPC supra
is concerned, the Apex Court in the Ram Prakash Chadda‘s case
supra has at paras 30, 31, 32 and 33 held as under:
30. This Court in the decision in R. Venkatakrishnan v. CBI, held that
criminal conspiracy, in terms of Section 120B, IPC, is an independent
offence and its ingredients are:
(i) an agreement between two or more persons;
(ii) the agreement must relate to doing or causing to be done
either:
(a) an illegal act;
(b) an act which is not illegal in itself but is also done
by illegal means.
31. An important facet of law of conspiracy is that apart from it
being a distinct offence, all conspirators are liable for the acts of
each other of the crime or crimes which have been committed as a
result of conspiracy. A careful scanning of the provisions
under Sections 120A and 120B, IPC, would reveal that the sine qua
non for an offence of criminal conspiracy is an agreement to commit
an offence. It consists of agreement between two or more persons
to commit the criminal offence, irrespective of the further
consideration whether or not the offence is actually committed as
the very fact of conspiracy constitutes the offence (See the decision
in K.S. Narayanan & Ors. v. G Gopinathan).
32. There can be no doubt that conspiracy is hatched in privacy and
not in secrecy, and such it would rarely be possible to establish
conspiracy by direct evidence. A few bits here and a few bits there,
on which the prosecution may rely, are not sufficient to connect an
accused with the commission of the crime of criminal conspiracy. To
constitute even an accusation of criminal conspiracy, first and
CRM (M) 466/2023 Page 9 of 11
foremost, there must at least be an accusation of meeting of minds
of two or more persons for doing an illegal act or an act, which is
not illegal in itself, by illegal means.
33. In Ajay Aggarwal v. Union of India & Ors. this Court
characterized the offence of criminal conspiracy as an agreement
between two or more persons to do an illegal act or a legal through
illegal means. Furthermore, it was held that commission of the
offence would be complete as soon as, there is consensus ad idem
and it would be immaterial whether or not the offence is actually
committed. It is also held therein that necessarily there must be
agreement between the conspirators on the design or object of the
conspiracy. As held in R. Venkatakrishnan case (supra), the
quintessential ingredient to attract the offence of criminal
conspiracy is agreement between two or more persons.
8. Keeping in mind the aforesaid position of law, and reverting back
to the case in hand, the case of the prosecution, the respondent
herein, is primarily based on a presumption that since the accused
officials of the JMC did not take action against the petitioners
herein at the time of raising of the deviated construction, it must
be inferred that the said accused JMC officials and the petitioners
herein had for extraneous considerations agreed to commit an
illegal act inasmuch as used illegal means to achieve a lawful act
in furtherance of the said agreement. However, perusal of the
charge sheet does not tend to show any tangible evidence
establishing the offense of criminal conspiracy hatched by the
JMC officials with the petitioners herein, in that, in law in absence
of a tangible evidence, be it direct or circumstantial, to attract
either ingredients of the alleged offense or any legal presumption
in favour of the prosecution, the offense of conspiracy covered in
the charge sheet cannot sustain.
Besides, a deeper examination of the material available on
the file inasmuch as the scanned record of the trial court tends to
CRM (M) 466/2023 Page 10 of 11
show that the investigating agency has not collected any
incriminating material during the course of the investigation that
would substantiate the allegations qua the offence in question
against the petitioners herein. Significantly, neither any financial
loss has been caused to the JMC nor any evidence has surfaced to
establish a connivance between the accused officials of the JMC
and the petitioners herein, so much so, the record of the charge
sheet does not even remotely disclose any specific overt act/s
forming offence of conspiracy or establishing an agreement
amongst the accused persons including the petitioners herein to
commit an illegal act or to adopt illegal means thereof.
9. Having regard to the aforesaid position obtaining in the matter
inasmuch as the record of the charge sheet, it is manifest that the
offence covered therein alleged to have been committed by the
petitioners herein does not prima facie stand established against
the petitioners on account of absence of the essential elements and
ingredients of the offence at this stage, notwithstanding the
dismissal of the earlier petition filed by the petitioners for
quashing of the FIR supra at its threshold before undertaking the
investigation therein.
10. Besides, a closer examination of the impugned order also tends to
show that the trial court has overlooked the aforesaid facts
inasmuch as the position of law laid down by the Apex Court qua
the provisions of Section 227 of Cr.PC and Section 120-B of RPC,
CRM (M) 466/2023 Page 11 of 11
and has misdirected itself while passing the impugned order
rendering the same legally unsustainable.
11. For what has been observed, considered and analysed
hereinabove, the instant petition succeeds, as a consequence
whereof the impugned order dated 12-05-2023 passed by the trial
court is quashed and the petitioners consequently shall stand
discharged.
(JAVED IQBAL WANI)
JUDGE
Srinagar
09-04-2025
N Ahmad
Whether the order is speaking: Yes
Whether the order is reportable: Yes
Nissar Ahmad Bhat
I attest to the accuracy and
authenticity of this document
21.04.2025 11:02