Nullifying of Roshni Act no bar for prosecution under PC Act: HC

Srinagar, Jan 30: The High Court of J&K and Ladakh ruled on Friday that the declaration of the Roshni Act as unconstitutional does not, by itself, prevent prosecution of public servants and beneficiaries under the Prevention of Corruption (PC) Act.

However, the court quashed criminal proceedings in cases where no evidence was found to support corrupt intent or undue benefit.

In a batch of pleas, some senior officers and beneficiaries had called in question prosecution against them with the contention that once Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001) popularly known as the Roshni Act had been declared void ab initio by the Division Bench in case of Prof S K Bhalla versus State of J&K, no prosecution against them could sustain in law.

Further, the petitioners had contended that even offences under the PC Act and other laws were not made out against them.

They had contended that at the most they had committed breach of procedure which was trivial in nature and hence no prosecution could be launched on these trivial issues.

In keeping with the DB directions, investigations were initiated by the CBI, resulting in registration of FIRs and a subsequent process which was under challenge before the single bench.

A bench of Justice Sanjay Dhar, while deciding the pleas, ruled that criminal liability under the PC Act could still arise if acts of bribery, abuse of official position, or conspiracy were established.

The court observed that the accused were not being prosecuted for violations of the Roshni Act itself, but for alleged criminal misconduct under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act.

The court noted that it would be illogical and preposterous to say that a public servant who has taken a bribe or illegal gratification while implementing the Roshni Act would get scot-free merely because the Roshni Act has been declared unconstitutional.

The court held that even if, pursuant to the judgment in Bhalla’s case, the accused are required to surrender the State land vested in them back to the State, saying that such surrender would not, by itself, result in their exoneration from charges of criminal misconduct.

The court ruled that where the material on record discloses that proprietary rights over the land were obtained by the beneficiaries through conspiracy with public servants who misused their official position to confer such benefits illegally, criminal liability would continue to subsist.

“Once an offence has been committed by a person, merely because the benefit derived by the said person has been restituted in favour of the person against whom the said offence has been committed, cannot lead to the obliteration of the offences committed,” it said.

The court noted that the CBI investigations stem from explicit and wide-ranging directions issued by the Division Bench in the SK Bhalla judgment, which had termed the Roshni scheme a massive land scam involving arbitrary, dishonest and illegal vesting of State land.

The court reiterated that it cannot dilute or bypass those binding directions mandating investigation and prosecution wherever criminality is disclosed.

However, in the specific cases before the court, the petitioners – public servants involved in land allotments – were granted relief.

Crucially, the court found, there was no material on record to show that the officials had obtained any pecuniary advantage, adopted corrupt means, or acted with dishonest or mala fide intent.

“In the absence of any material on record to show that the accused public servants had either adopted any corrupt means or obtained any pecuniary advantage for themselves, it cannot be stated that the offence of criminal misconduct is made out against them,” the court said, underlining that dishonest intention was the gist of the offence under Section 5(1)(d) of the Prevention of Corruption Act which is punishable under Section 5(2) of the act.

“Unless it is shown that a public servant has, by corruption or illegal means, abused his position, it cannot be stated that he has committed the offence of criminal misconduct,” the court said.

The court noted that the trivial procedural irregularities do not constitute a blatant violation of the provisions of the act or the rules framed thereunder so as to attract criminal liability.

The court noted that once the fundamental facts on the basis of which ownership could have been vested in favour of the beneficiaries are established from the record, mere discrepancies in the application forms cannot form a ground for prosecuting those public servants who have dealt with the matter.