Criminal Prosecution Under J&K Prevention Of Corruption Act Maintainable Despite Roshni Act Being Declared Void Ab Initio; Jammu & Kashmir And Ladakh High Court
Isabella Mariam
The High Court of Jammu and Kashmir and Ladakh Single Bench of Justice Sanjay Dhar has held that criminal prosecutions linked to alleged irregularities in the implementation of the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001 (the Roshni Act) may continue, notwithstanding that the statute has been declared unconstitutional and void from its inception. The Court declined to accept the plea that the invalidation of the Roshni Act, or the subsequent retrieval of land from beneficiaries, would extinguish allegations of criminal misconduct and conspiracy under the applicable anti-corruption law against accused public servants and alleged beneficiaries. It accordingly rejected the blanket challenge to maintainability on this ground and proceeded on the basis that each case must be assessed on its own merits.
The petitions arose from prosecutions launched by the Central Bureau of Investigation in relation to alleged irregularities in the implementation of the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001 (Roshni Act). The petitioners included public servants and private beneficiaries who had been conferred ownership rights over State land under the Act. The Roshni Act had earlier been declared unconstitutional and void ab initio by a Division Bench in Professor S.K. Bhalla v. State of J&K.
The principal contention of several petitioners was that once the Roshni Act stood declared void ab initio, no prosecution could continue for acts allegedly committed under it. It was also contended that restoration of land to the State negated any alleged loss. The CBI opposed the petitions, arguing that the accused were being prosecuted for offences under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B RPC, not under the Roshni Act.
The Court examined individual charge-sheets relating to alleged misuse of official position, improper categorisation of occupants, illegal review of price fixation, violation of Section 4(1-A) of the Act, and alleged wrongful conferment of proprietary rights.
The Court recorded that “the issue that is required to be determined… is as to whether, on account of the fact that the Roshni Act has been declared unconstitutional and void ab initio, the prosecution for offences defined under the P.C. Act… can proceed.”
On the effect of the Act being void ab initio, the Court observed that “the petitioners are being prosecuted not for an offence defined under the Roshni Act… but they are being prosecuted for an offence defined under the P.C. Act, which is in existence.” It further stated that “to say that a public servant who has taken bribe or illegal gratification while implementing the Roshni Act would get scot-free because the Roshni Act has been declared unconstitutional would be illogical and preposterous.”
Addressing restitution of land, the Court recorded that “once an offence has been committed by a person, merely because the benefit derived by the said person has been restituted… cannot lead to the obliteration of the offences committed.”
While considering the scope of Section 482 CrPC, the Court stated that “it is only if the material collected by the Investigating Agency does not make out a case against the petitioners that this Court would be justified in quashing the impugned proceedings.”
In relation to specific petitions, the Court found in certain cases that “the charge-sheet… does not disclose commission of any offence against the petitioner.” In others, it recorded that “prima facie, the offence of criminal misconduct is made out against the concerned public servants.”
On the Article 20(1) objection—invoking the bar on conviction for conduct that was not an offence under the law in force at the time—the Court found the contention to be wholly misconceived. It observed “… the petitioners are being prosecuted not for an offence defined under the Roshni Act, which has been declared unconstitutional, but they are being prosecuted for an offence defined under the P.C. Act, which is in existence.
On review of price fixation, the Court stated that “the Committee had no power to review the rates,” and observed that “an appeal is provided against an order of the Committee fixing the price, but no review is provided under the Rules or the Act against such an order.” It concluded that “the action of the Committee… in reviewing the rates is without jurisdiction and in derogation of the provisions contained in the Act and the Rules.”
In some matters involving minor statutory deviations, the Court recorded that “mere minor violation of a statute, without there being any evidence… of corrupt practice or dishonest intention, cannot form a basis for their prosecution.”
The Court directed that “the declaration of the Roshni Act as void ab initio by the Division Bench of this Court would not render the prosecution against the petitioners unsustainable in law.” In CRM(M) No. 235/2024: “the petition is allowed and the impugned charge-sheet and the proceedings emanating therefrom against the petitioner are quashed.” In CRM(M) No. 650/2023: “the petition… lacks merit and deserves to be dismissed.”
In CRM Nos. 74/22 and 251/2022, it directed that “both the aforesaid two petitions are allowed and the impugned chargesheet and the proceedings emanating therefrom against the petitioners are quashed.” In CRM(M) No. 427/2023:“the impugned order dated 06.06.2023 passed by the learned Special Judge, Anti-Corruption (CBI Cases), Srinagar, to the extent of framing of charges against the petitioner Basharat Ahmad Dar, being not sustainable in law, is set aside,” and“the connected criminal revision petitions stand dismissed.” In CRM(M) Nos. 328/2024 and 308/2024: “both the aforesaid petitions are allowed and the impugned chargesheet as well as the proceedings emanating therefrom are quashed.”
Advocates Representing the Parties:
For the Petitioners: Mr. Z.A. Shah, Senior Advocate with Mr. Hanan Advocate; Mr. Jahangir I. Ganai, Senior Advocate with Mr. Owais Advocate; Mr. N.A. Beigh, Senior Advocate with Mr. Murshid Advocate; Mr. Sheikh Faraz, Advocate; Mr. J.H. Reshi, Advocate; Mr. Z.A. Qureshi, Senior Advocate with Ms. Rehana Fayaz, Advocate
For the Respondents: Mr. T.M. Shamsi, DSGI with Mr. Faizan Ahmad, CGSC
Case Title: Mushtaq Ahmad Bakshi & Ors. v. Central Bureau of Investigation & Ors.
Case Number: CRM(M) No. 308/2024 a/w connected matters
Bench: Justice Sanjay Dhar
