JUDGMENT
O.P. Sharma, J.
1. The Special Judge Anti-Corruption Kashmir framed charges under Section 5(1)(e)/5(2) of the Prevention of Corruption Act and Under Section 12/14 of the Publicmen and Public Servants Declaration of Assets and other Provisions Act, 1983 against the petitioner vide order dated 15.11.1999. The petitioner seeks quashing of the charge as well as proceedings on the following grounds:
(i) That the Commissioner having not been appointed in accordance with Section 10 of the Prevention of Corruption Act, the Vigilance Organisation was not in existence on 3.12.1996 the date he constituted different teams for conducting raids and 4.12.1996 when FIR No. 37/96 Vigilance Organisation Kashmir was registered. Similarly registration of FIR No. 37/96 on 4.12.1996 is also bad and consequently investigation illegal because the office of Commissioner of Vigilance was lying vacant;
(ii) That the documents produced by the accused have not been considered by the trial court at the time of framing of the charge;
(iii) That the allegations against the petitioner for possession of assets disproportionate to his known source of income had earlier been investigated in the years 1981, 1985, 1991 and 1995, but were found baseless. There was thus no ground for registration of fresh case and investigation. The change therefore, is groundless.
(iv) That the investigation of the case being in contravention of Section 156 of the Code of Criminal Procedure, the proceedings are liable to be quashed.
2. Mr. Qureshi, learned counsel for the petitioner argued that under Section 10 of the Prevention of Corruption Act Vigilance Organisation comprises of Commissioner of Vigilance and other officers. Since on the date the case was registered, the office of Commissioner of Vigilance was lying vacant, therefore, the case could not have been registered. He next argued that the allegations of possession of these assets were earlier investigated in 1981, 1986 and 1995. but each time the case was closed as not proved. The petitioner produced these documents before the trial court, but these were not considered and, therefore, the charge is liable to be quashed in view of the law laid down in State of Madhya Pradesh v. Mohan Lal Soni, AIR 2000 SC 2583.
Lastly it was argued by Mr. Qureshi that the investigation having been conducted in contravention of the Act, the charge has been wrongly framed and the proceedings are liable to be quashed. He also argued that the sanction is invalid because proposal to accord sanction has not been approved by the competent authority. Mr. Attar, learned Addl. Advocate General has controverted all these grounds. According to him none of these grounds are sustainable in view of the judgment of the Supreme Court in State of M.P. v. Ram Singh, 2000 (5) SCC 88, H.N. Rishbud v. State of Delhi AIR 1955 SC 196, K. Veeraswami v. Union of India, 1991 (3) SCC 655 and Sushil Bhanot and Ors. v. State 1981 Chandigarh Law Reports 676. He also placed reliance on Umar Abdul Sakoor Sorathia v. Intelligence Officer, AIR 1999 SC 2562.
3. The question involved is whether existence of the Vigilance Organisation depends upon the appointment/posting of Vigilance Commissioner in accordance with Section 11. The challenge to the existence of Vigilance Organisation on 3 and 4 Dec. 1996 when different teams were constituted by the Vigilance Commissioner and FIR No. 37/96 was registered is founded on the plea that Shri. S.M. Desalphine having been appointed Vigilance Commissioner vide Government order dated 19.12.1996 he could neither constitute different special groups to carry out special operations nor FIR could be registered. The argument proceeds on the assumption that under Sub-section (2) of Section 10 the organisation consists of a Vigilance Commissioner and such other officers appointed by the Government. Since the Vigilance Commissioner was appointed on 19.12.1996, so there was no Vigilance Organisation in existence. To appreciate the argument, reference to Section 10 becomes necessary which reads as under:-
“10. Establishment of Vigilance Organisation. — (1) The Government may, by notification in the Government Gazette, establish an organisation for investigation of offence under this Act under the name of ‘Vigilance Organisation.’
(2) The Organisation shall’ consist of a Vigilance Commissioner and such other officers and staff subordinate to him as the Government may from time to time think fit to appoint.
(3) The qualifications and eligibility for appointment as Vigilance Commissioner and other officers and staff shall be such as may be prescribed by the Government by rules made under this Act.”
4. Section 10 in fact was substituted vide Act No. IX of 1983. This section refers to the initial constitution of the Organisation to replace Anti-Corruption Organisation. While Sub-section (1) empowers the Government to establish Vigilance Organisation Sub-section (2) provided for its constitution which is to consist of a Vigilance Commissioner and such other officers and staff as may be appointed from time to time. The constitution or establishment of the organisation is different than the occupation/holding of the post in the organisation. The expression “The Organisation shall consist of a Vigilance Commissioner and such other officers” refers to the structure of the organisation. Since the posts of Vigilance Commissioner and other officers are transferable because the Government has been given the power to make appointment from time to time if any post remains vacant, the organisation does not cease to exist as is argued. It is not constitutional post, but a post created by the Government. Unlike constitutional post, absence of the officer either because of retirement of failure to appoint does not mean that the organisation does not exist. Creation of post is one thing and the appointment another. What is important is whether the post of Vigilance Commissioner existed or had been abolished. Since the direction dated 3.12.1996 was issued by Shri Dasalphine in the capacity as a Vigilance Commissioner, it ….. he had already been appointed as Vigilance Commissioner. The issue of order date 19.12.1996 only empowered him to discharge the power of Vigilance Commissioner under Sub-section (3) of Section 11. Section 11 in fact vests the superintendence and administration of the Vigilance Organisation in the Government, but under Sub-section (2) of this section administration of the organisation vests in the Vigilance Commissioner. Until the issue of Government order dated 19.12.1996, the superintendence and administration of the organisation both vested in the Government, but after this administration vested in the Vigilance Commissioner. So the order dated 3.12.1996 directing the constitution of different teams for special operating is not vitiated because the Government has already appointed him as Vigilance Commissioner though at that time he was not empowered under Sub-sections (2) and (3) of Section 11, but the direction being purely of administration nature, if it had been carried out by officers of the Vigilance Organisation, their action would not suffer from any illegality., if they had the power to act under the Act.
5. There is another aspect of the case. Under Section 8-A of the Act every officer of Vigilance Organisation at the rank of sub-Inspector of Police is deemed to be an officer incharge of Police Station. This section reads as under:
“8-A. Superior officers of Police to exercise powers of officer -in-charge of a Police Station. — Notwithstanding anything contained in the Code of Criminal Procedure, Samvat 1989 for the purposes of this Act, any officer of the Vigilance Organisation of and above the rank of Sub-Inspector of Police shall, subject to the provisions of this Act, exercise any of the powers of the officer incharge of a police Station anywhere in the State and when exercising such powers shall be deemed to be an officer-in-charge of the Police Station within the limits of which he is exercising such powers.”
6. So FIR No. 37 of 1996 could have been registered by any officer holding the rank of Inspector of Police being ex-officio officer of the Police Station in terms of Section 8-A, Thus no challenge to the legality of FIR No. 37/96 could be founded on the ground that there was no Vigilance Organisation in existence because of the absence of the Vigilance Commissioner.
7. As long as the post of Vigilance Commissioner is in position the delay in filling up the vacancy does not effect the Constitution of the Vigilance Organisation because Section 8-A of the Act vests the officers of the organisation all the powers required for registration of case and investigation even in his absence. The officer mentioned under Section 8-A do not owe their existence to the Vigilance Commissioner but to the Government and exercise powers under the Act under the Superintendence and control of the Government until the Vigilance Commissioner is appointed. Moreover, constitution of team of officers of the Vigilance Organisation is purely an administrative and not a statutory Act. It does not vitiate the consequence or the result of such action. The Superintendent of Police Vigilance Organisation, Kashmir who has the control over his subordinates having carried out the instructions the action of the officers constituting terms or the result of the raids carried out by the different teams is not vitiated because all of them have acted in the aid of investigation which the SP Vigilance Kashmir was competent to investigate. In view of the above FIR No. 37/96 having been registered Under Section 8-A of the Act and the investigation does not suffer from any infirmity much less any illegality. So the argument that registration of the case and investigation was without jurisdiction as the Vigilance Organisation did not exist has no merit. It is rejected accordingly.
8. Assuming that the investigation of the case suffers from any infirmity though it is not the case as noticed above, even then it does not affect power of the court to take cognizance in view of the law laid down in H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 hold that:
“A defect or illegality in investigation, however, serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 Cr.P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 Cr. P.C. is one out of a group of sections under the heading “Conditions requisite for initiating of proceedings”. The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e. Sections 193 and 195 to 199.
9. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in once sense, Clauses (a), (b) and (c) of Section 190(1) any conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore, a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial.”
After reproducing Section 537 Cr. P.C. their Lordships:
“If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in- ‘Prabhu v. Emperor’, AIR 1944 PC 73(C) and -‘Lumbhardar Zutshi v. The king, AIR 1950 PC 26 (D).”
This decision has been relied by the Supreme Court in State of M.P. v. Ram Singh, 2000 (5) SCC 88, So the first ground of challenge must fail firstly because delay in the appointment/posting of the Vigilance Commissioner does not affect the Constitution of the Vigilance Organisation as long as the post exists and secondly, his direction to the SP Vigilance Kashmir to constitute separate teams to carry out raids or investigation does not vitiate the investigation when the authority of the Vigilance Kashmir to register the case and constitute teams is not question.
(ii) It has been argued that the learned Special Judge did not consider the documents produced by the petitioner and this is sufficient to quash the charge framed against him. Mr. Qureshi has referred to letter dated 29.9.1986 written by the SSP Vigilance Organisation Srinagar to Commissioner of Vigilance recommending that the case against the petitioner who was Executive Engineer PHE be closed as not proved. Another document produced by the petitioner was letter dated 19.6.1995 in which it is stated that the allegation about his possessing assets disproportionate to the known source of his income has not been proved. However, the court has considered these documents, but refused to place any reliance on the finding for the reason that no formal case was registered against the accused. Since the documents have been considered while rejecting the argument, no support can be drawn from the judgment in State of Madhya Pradesh v. Mohan Lal Soni, AIR 2000 SC 2583 in which the charge was quashed on the ground that the court did not consider the documents despite direction by the High Court.
10. Moreover, the trial Court while framing the charge has to consider the evidence only to find out whether prima-facie charge is made out. If after considering the documents produced by the petitioner, the court still prefers to rely on the evidence collected by the prosecution, it is not a case of abuse of process of the court but appreciation of evidence to find out whether there is prima-facie proof to frame the charge. This is what the finding is. In that view of the matter the second challenge to the order impugned also fails and is rejected.
11. This brings us to the last challenge to the order that sanction to the prosecution of the petitioner has not been issued by the competent authority. According to Mr. Qureshi the sanction has not been issued with the approval of the competent authority. However, there is presumption in favour of the Government order, the presumption is rebuttable. Another argument is that Chief Minister not being the appointing authority, sanction is defective. The learned Special Judge has rejected this argument by placing reliance on the judgment of this Court in Sheikh Abdul Hafiz v. State and Ors., 1999 SLJ 537 in which a learned Single Bench of this Court held as under:
“It is settled by the decision in case P.S. Sushil Behanot and Ors. v. State, 1981 CLR 677 that the competence of the authority to grant sanction in terms of Clause (b) of Section 6 of the Act has to be determined with reference to Sub-section (1) to Section 126 of the State Constitution and consequently the authority granting the sanction should either be equal to or higher in rank than the appointing authority, rank having the reference to the date of appointment of the Government Servant sought to be prosecuted under the Act. The Government being a higher authority the sanction granted by it to prosecute the petitioner cannot be said on that ground to be invalid”.
Moreover, the question as to whether the authority other than the appointing authority can accord sanction to the prosecution Under Section 6 has been considered by this Court in Sushil Behanot v. State 1981 Chandigarh Law Reports 676. After reproducing Section 6 Kotwal, J(as his Lordship then was) held as under:
“This section, as its plain language warrants, places Government servants in two categories for the purpose of sanctioning their prosecution for the offences mentioned therein, namely, those who can be removed from service by the Government, and those who can be removed from service of other authorities. Clause (a) deals with Government servants belonging to the first category, whereas Clause (b) deals with those belonging to the second category. No difficulty can arise insofar as Government servants falling in Clause (a) are concerned, for there can be no two opinions that they can be removed from service by the Government alone, irrespective of the fact by whom they were appointed. Some difficulty may, however, arise insofar as Government servants falling in Clause (b) are concerned. The petitioner, Kidar Singh and Swami Raj, being allegedly removable from office by any authority other than the Government a question would naturally arise, as to who would be that authority. Answer to this question is not to be found in the Act, for the Act does not say as to who shall be removable from office by whom. Answer to this question has, however, to be found in Section 126 of the Constitution of Jammu and Kashmir ordains that no person who is a member of a Civil service of the State, or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Decisions under Article 311 of the Constitution of India, which corresponds to Section 126 of the State Constitution, are legion on the point that an authority equal or higher in rank to the authority which had appointed the Government in competent to remove him from service. This rule is based upon a sensible view that a subordinate should not be permitted to nullify the order of his superior. (Karamdeo Singh v. State of Bihar and Anr., AIR 1956 Patna 228, and Monmatha Nath Ghosh v. Director of Public Instruction, AIR 1958 Cal 49).”
After referring to a catena of authorities his Lordship concluded as under:
“12. The law is thus well settled that competency of the authority to grant sanction in terms of Clause (b) of Section 6 of the Act has to be determined with reference to Sub-section (1) of Section 126 of the State Constitution. Consequently, the authority granting the sanction should either be equal to or higher in rank than the appointing authority, but in no case lower than it, rank having reference to the date of the appointment of the Government servant sought to be prosecuted under the Act.”
Reliance was also placed on Mahesh Prasad v. State of U.P., AIR 1955 SC 70 wherein it has been held that:
“What the Constitution requires is that a person should not be removed by an authority subordinate to the one by whom he was appointed and what the rule in the Railway Code prescribes is substantially the same, viz., “the authority competent to remove should not be lower than the one who made the appointment.” These provisions cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior. It appears to us to be enough that the removing authority of the same rank or grade.”
12. The controversy that the authority to sanction prosecution must be superior to the appointing authority arose because of the observations made in R.S. Nayak v. A.R. Antula, 1984 (2) SCC (Cri) 172. These observations were considered by the Constitution Bench in K. Veeraswami v. Union of India, 1991 (3) SCC 655. While explaining the observations their Lordships held:
“50. With the utmost respect, we are unable to agree with the above observations. It seems to us that these observation were not intended to lay down the law that the authority competent to grant sanction for prosecution of public servant should be vertically superior in the hierarchy in which the office of the public servant exists. That was not the issue in that case. The observations therefore, are not meant to be and ought not to be regarded as laying down the law. It has been said almost too frequently to require repetition that judgments are not to be read as statutes. In our opinion it is not necessary that the authority competent to give sanction for prosecution or the authority competent to remove the public servant should be vertically superior in the hierarchy in which the office of public servant exists. There is no such requirement under Section 6. The power to give sanction for prosecution can be conferred on any authority. Such authority may be of the department in which the public servant is working or an outside authority. All that is required is that the authority must be in a position to appreciate the material collected against the public servant to Judge which the prosecution contemplated is frivolous of speculative. Under our enactment the power has been conferred on the authority competent to remove the public servant. Under the British Prevention of Corruption Act, 1906 the power to give consent for prosecution for an offence under that Act has been conferred upon the Attorney General or Solicitor General.”
This is now the law of the land declared under Article 141 of the Constitution of India binding on all Courts in the country.
13. Moreover, power to create civil posts vests in the Government which includes power to abolish the post and also appoint a person on the post. These powers are exercised by the Government in accordance with the Jammu and Kashmir Business Rules framed in exercise of the powers vested under Sections 43 and 45 of the Constitution of Jammu and Kashmir.
14. In Bhuri Nath v. State of J&K, AIR 1997 SC 1711, the Supreme Court while referring to the business rules of Government of India observed as under:
“The expression” Business of the Government of India” in Clause (3) of Article 77, and the expression “Business of the Government of the State” in Clause (3) of Article 166 includes all executive business.”
20. The constitutional mechanism, i.e. Cabinet system of Government is devised for convenient transaction of business of the executive power of the State. Though constitutionally the executive power of the State vests in the Governor, he does not, unless Constitution expressly conferred on him, personally take the decision. The decisions are taken according to business rules at different levels and ultimately the decision rests with the authority specified in the business rules and is expressed to be taken in the name of the Governor.”
15. Section 45 of the State Constitution corresponds to Section 77 and therefore, the legal position cannot be different. As noticed above, the State has framed business rules Under Section 43 of the Constitution and since power of removal of any public servant vests in the Government, and under the business rules, Chief Minister has been empowered to exercise these powers as per Rule 31(1) of the Business Rules. Government therefore, being superior authority to the appointing authority has the power to grant sanction to the prosecution. So the sanction issued by the Government for the prosecution of the petitioner cannot be challenged on the ground of competence because the powers of the Government have to be exercised in accordance with the business rules.
16. This petition, therefore, is without any merit hence dismissed.