HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

WP (C) No. 587/2021 c/w

CRM(M) No. 928/2024

CRM(M) No. 491/2026

WP (C) No. 587/2021

Reserved on: 19.08.2026

Pronounced on: 17.09.2026

Uploaded on: 17.09.2026

Whether the operative part or

full judgment is pronounced:Full

1. Abdul Hamid,

S/o Late. Sh. Fakar Din

2. Shabnam Kousar,

W/o Sh. Abdul Hamid

3. Mohd. Haroon Hamid,

S/o Sh. Abdul Hamid

4. Arousa Choudhary,

D/o Sh. Abdul Hamid

All residents of Chowadhi, Jammu

5. Shenaz Akhter,

S/o Abdul Gaffar

R/o H.No. 87, Gujjar Nagar,

Jammu

…..Petitioner(s)

Through: Mr. P.N. Raina, Sr. Advocate with

Mr. J.A. Hamal, Advocate

Vs.

UT of Jammu and Kashmir,

Through Senior Superintendent of Police,

Anti-Corruption Bureau, Jammu

Through:

CRM(M) No. 928/2024

1. Abdul Hamid, aged 59 years

S/o Late. Sh. Fakar Din

2. Shabnam Kousar, aged 54 years

W/o Sh. Abdul Hamid

3. Mohd. Haroon Hamid, aged 33 years

S/o Sh. Abdul Hamid

4. Arousa Choudhary, aged 31 years

D/o Sh. Abdul Hamid

All residents of Chowadhi, Jammu

5. Shenaz Akhter, aged 47 years

S/o Abdul Gaffar

R/o H.No. 87, Gujjar Nagar,

Jammu

.…. Respondent(s)

Mr. P.D. Singh, Dy. AG

…..Petitioner(s)

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Through:

Vs.

1. UT of J&K,

through Sr. Superintendent of Police,

Anti-Corruption Bureau Jammu.

2. Saleem Mohammad,

S/o Late Sh. Nawab Din,

R/o H. No. 821-A, Gandhi Nagar, Jammu

3. Atta Mohammad,

S/o Sain Mohd.

R/o Bari Khad,

Tehsil Bari Brahmana Samba

4. Smt. Shakun Singh,

D/o Surjeet Singh,

R/o Ratnu Chack, Jammu,

A/P 18-D, U7V, Block-B,

Shalimar Bagh, New Delhi.

Through:

CRM(M) No. 491/2026

1. Shakun Singh, Aged 61 years,

W/o Sh. Surjeet Singh,

R/o Ratnu Chack, Jammu,

A/P 18-D, U&V, Block-B,

Shalimar Bagh, New Delhi-110088

Through:

Vs.

1. UT of J&K,

through Senior Superintendent of police,

Anti-corruption Bureau, Jammu

2. Saleem Mohammad

S/o Late Sh. Nawab Din,

R/o H. No. 821-A, Gandhi Nagar, Jammu

3. Atta Mohammad,

S/o Sain Mohd.,

R/o Bari Khad,

Tehsil Bari Brahmana, Samba

4. Abdul Hamid,

S/o Late Sh. Fakar Din,

R/o chowadhi, Tehsil Bahu, District Jammu

5. Shabnam Kousar,

W/o Sh. Abdul Hamid,

R/o Chowadhi, Tehsil Bahu, District Jammu

6. Mohd. Haroon Hamid,

S/o Sh. Abdul Hamid,

Mr. P.N. Raina, Sr. Advocate with

Mr. J.A. Hamal, Advocate

.…. Respondent(s)

Mr. P.D. Singh, Dy. AG.

…..Petitioner(s)

Mr. Rahul Raina, Advocate.

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R/o Chowadhi, Tehsil Bahu, District Jammu

7. Arousa Choudhary,

D/o Sh. Abdul Hamid,

R/o Chowadhi, Tehsil Bahu, District Jammu

8. Shenaz Akhter,

S/o Abdul Gaffar,

R/o H.No. 87, Gujjar Nagar,

Tehsil and District Jammu.

Through:

.…. Respondent(s)

Mr. P.D. Singh, Dy. AG.

CORAM: HON’BLE MR. JUSTICE SANJAY PARIHAR, JUDGE

J U D G M E N T

1. The petitioners have assailed FIR No. 05/2021 dated 03.02.2021, registered by

the Anti-Corruption Bureau, Jammu, under Section 5(1)(d) read with Section 5(2)

of the J&K Prevention of Corruption Act, SVT. 2006 and Section 120-B RPC and

consequent chargesheet, primarily on the ground that the prosecution proceeds on

an erroneous interpretation of Section 121 of the J&K Land Revenue Act.

According to them, Mutation Nos. 558, 559 and 564 were attested by the

competent Revenue Officers in exercise of statutory jurisdiction during

settlement/revision of the record of rights and continue to subsist. Their

contention is that an order passed by a statutory authority in exercise of its

adjudicatory jurisdiction cannot, merely because the investigating agency

considers the exercise to be legally erroneous, furnish the basis for criminal

prosecution.

2. The respondents, on the other hand, maintain that the aforesaid mutations,

pertaining to 116 kanals and 12 marlas of land, were attested by the Revenue

Officers in abuse of their official position and in violation of the provisions of the

Agrarian Reforms Act and the applicable settlement instructions, thereby

unlawfully conferring ownership rights upon the petitioners. It is further alleged

that the course adopted resulted in evasion of stamp duty and corresponding loss

to the State exchequer.

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3. Reliance is also placed by the petitioners upon the order dated 22.05.2025 passed

by the Divisional Commissioner Jammu, whereby the mutation, according to

them, was left undisturbed while directing recovery of the requisite stamp duty

and associated charges. They contend that the said order lends support to their

plea that the dispute essentially concerns the legality and fiscal consequences of a

revenue transaction rather than the commission of a criminal offence.

4. The question that, therefore, arises for consideration is whether the material

collected during investigation, taken at its face value, discloses the ingredients of

criminal misconduct and conspiracy, particularly a dishonest or mala fide abuse

of official position for conferring an unlawful pecuniary advantage upon the

beneficiaries; or whether the prosecution rests substantially upon a disputed

interpretation of Section 121 of the Land Revenue Act and the legality of the

exercise of statutory jurisdiction by the Revenue Officers.

5. The mere circumstance that an order passed by a statutory authority may

subsequently be considered erroneous or legally unsustainable would not, by

itself, constitute criminal misconduct. At the same time, the existence or

subsistence of such an order would not preclude criminal prosecution where there

is independent material indicating that the statutory power was deliberately

abused pursuant to a dishonest or corrupt design. The material distinction,

therefore, is between an erroneous or irregular exercise of statutory power and its

dishonest exercise in furtherance of a criminal conspiracy.

6. It is in this context that the prosecution material is required to be examined to

ascertain whether it contains circumstances, independent of the disputed

interpretation of Section 121, capable of prima facie establishing collusion,

deliberate abuse of official position or the requisite criminal intent. The absence

of an allegation of illegal gratification is not, by itself, determinative;

nevertheless, where the foundation of the prosecution is an adjudicatory act

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performed within the ostensible jurisdiction of the statutory authority, the

existence of material disclosing the requisite dishonest or mala fide intent

assumes significance.

7. According to the petitioners, the prosecution proceeds on the premise that, since

mutation under Section 8 of the Agrarian Reforms Act was attested in favour of

the erstwhile owners in 1992, any transfer in favour of the petitioners must

necessarily have taken place thereafter and would, therefore, attract the bar

contained in Section 28-A of the Act. It is contended, however, that the

petitioners had been in possession of the land since 1987 and that the subsequent

attestation of mutation under Section 8 merely perfected the rights of the

erstwhile owners and did not determine the date on which possession had already

been transferred to the petitioners.

8. The petitioners further contend that the transfer in their favour was by way of an

oral gift which came to be recognized during Bundobust in 2005. Emphasis is laid

on the fact that the erstwhile owners have not disputed the transfer or questioned

the mutations on the ground of illegality. It is also pointed out that one of the co-

owners, Vijay Singh, though initially associated with proceedings questioning the

mutation by way of revision, subsequently stated before the Divisional

Commissioner Jammu that he had been misled into initiating such proceedings.

On this basis, it is urged that there was no material for the investigating agency to

infer a criminal design merely from the attestation of the mutations.

9. Ld. Government Counsel, supporting the charge-sheet, contends that the

petitioners are the beneficiaries of an abuse of official position by the Revenue

Officers, who, in disregard of the governing rules and instructions, conferred

ownership rights upon them. The prosecution disputes the petitioners’ claim of

being bona fide purchasers or occupants and maintains that the mutations were

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contrary to the applicable Government Order No. 432-C and other governing

instructions.

10. It is further submitted that the petitioners have produced neither an agreement to

sell nor any other document evidencing alienation by the recorded owners and

have also failed to establish that the mutations were permissible under Hidayat

Bundobust, 2005. According to the prosecution, the manner in which the Revenue

Officers exercised their authority, resulting in an undue benefit to the petitioners,

constitutes sufficient material, at this stage, to sustain the allegation of abuse of

official position and conspiracy.

11. Ld. Government Counsel lastly submits that examination of the rival claims

regarding the legality of the mutations, the nature and date of transfer, and the

veracity of the prosecution material would entail an appreciation of disputed facts

and evidence. Such an exercise, it is urged, falls within the province of the trial

Court and ought not to be undertaken while exercising jurisdiction for quashing

the charge-sheet.

12. Heard both the counsels at length and gone through the record.

13. The substance of the prosecution case is that the then Settlement Officer, in

conspiracy with the other accused Revenue Officials, illegally attested Mutation

Nos. 558 dated 09.08.2011, 559 dated 16.08.2011 and 564 dated 20.10.2011

under Section 121 of the J&K Land Revenue Act during settlement operations,

thereby conferring rights upon the petitioners in respect of land measuring 116

kanals and 12 marlas situated at Village Rajpur Kohlar, Tehsil Bari Brahmana.

According to the prosecution, the mutations were attested in violation of Section

28-A of the Agrarian Reforms Act and Government Order S-432 of 1996.

14. The prosecution maintains that Section 28-A prohibited transfer or alienation of

land vested in the erstwhile owners under the Agrarian Reforms Act and that

similar restrictions operated in respect of the land covered by Government Order

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S-432 of 1996. It is further alleged that, instead of attesting a mutation for the

village as a whole during settlement operations, three separate mutations were

attested in favour of the beneficiaries. These circumstances, according to the

prosecution, indicate a concerted exercise of official authority to confer an undue

benefit upon the petitioners, besides causing loss to the State exchequer on

account of the requisite revenue/stamp duty.

15. Mutation No. 558 pertains to land measuring 61 kanals and 6 marlas, stated to

have earlier been recorded under Section 8 of the Agrarian Reforms Act, and was

attested in favour of Abdul Hamid and Shabnam Kouser. Mutation No. 559

relates to land measuring 38 kanals and 9 marlas, attested in favour of

Mohammad Haroon, Hamid and Arosa Choudhary, part whereof, falling under

Khasra Nos. 87, 87-min and 89, is stated to be governed by the Agrarian Reforms

Act, while the land under Khasra Nos. 51 and 52 is stated to fall within the

purview of Government Order S-432 of 1996. Mutation No. 564 relates, inter

alia, to land measuring 9 kanals and 17 marlas under Khasra No. 90-min, attested

in favour of Shahnaz Akhter, and land measuring 7 kanals under Khasra No. 87,

attested in favour of Sikan Singh, which is also stated to be land governed by

Section 8 of the Agrarian Reforms Act.

16. The prosecution has proceeded on the premise that, though the land was

proprietary land and the mutations were attested during settlement operations

under Section 121 of the Land Revenue Act, the said provision merely empowers

the Revenue Officer to determine a question of title for the purposes of settlement

and does not authorize conferment of ownership. According to the investigating

agency, recourse to Section 121 is permissible only where the underlying mode of

acquisition is lawful but the connected record is unavailable. It is essentially on

this construction of Section 121 that the prosecution seeks to sustain the FIR and

the consequential charge-sheet.

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17. It is, however, not in dispute that the mutations were attested by the Settlement

Officer during settlement operations and that, by virtue of SRO 314 dated

27.07.1999, the concerned Revenue Officers had been vested with powers for

preparation/revision of the record of rights under the Land Revenue Act. The

controversy, therefore, is not one of inherent lack of authority in the officer who

attested the mutations, but relates to the scope of the power exercisable during

settlement and, in particular, whether Section 121 permitted recognition of the

rights claimed by the beneficiaries in the circumstances obtaining in the case.

18. Section 22 of the Land Revenue Act provides as under: -

22. Making of special revision of record-of-rights.

(1) Where it appears to the Government that a record-of-rights for an

estate does not exist or that the existing record-of-rights for an estate

requires revision, it may by a notification direct that a record-of-

rights be made or that the record-of-rights be revised, as the case may

be.

(2) The notification may direct that the records-of-rights may be made or

specially revised for all or any estate in any local area.

(3) A record-of-rights made or specially revised for an estate under this

section shall be deemed to be the record-of-rights for the estate, but

shall not affect any presumption in favour of the [Union Territory]

which has already arisen from any previous record-of-rights.

121. Procedure to be followed in Settlement Proceedings when a

question of title arises

If, in the course of the record-of-rights or of revision of the

record-of-rights in any local area in pursuance of notification issued

under Section 22, any question of title arises it will be decided

summarily [by the Collector whose decision, subject to such orders

as may be passed in appeal by the Divisional Commissioner shall be

binding] on the parties till it is set aside by a decree of the Civil

Court.

When such a decree is made the record-of-rights shall

be corrected, if necessary, in accordance therewith, on an

application to the [Collector] within whose jurisdiction the property

affected is situate.

Rule 9 of Jadeed Hidayat Bundobust of 2005 applicable for

the relevant year when the settlement of the said village

was in operation:

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1. “When the vendee/vendees have not secured possession, but

the vendor/vendors are still in possession of the vended land.

2. When the vendee/vendees are in possession of less or more

land, as such Instead of 02 Kl vendee(s) Is/are In possession of

01 K Land 10 mls or 02 Kls and 10 mls;

3. When the possession of vendor/vendors Is in the Khara

Number other than the one vended, that is, he has purchased a

particular survey number, but obtained possession in another

survey number;

4. When the same vended has been sold to be more than one

vendor, but possession has been obtained by only one vendor;

5. When the vended land has been exceeded i.e. If the vended

land is 10 Kanals as per the settlement record and sale deed

has been executed for 12 Kanals and also possession of 12

Kanals;

6. In case of oral gift or oral exchange or Shariya Bay (religious

sale) provided possession is proved on the spot.

7. When any proprietary land or “Shamlat land under section 5”

has been bought under Road, Nallah, or Canal, but no

acquisition proceedings have been made by Govt. Instead,

people or owner/s have voluntarily given away the same,

process under Section 121 of Land Revenue Act, 1939 shall be

made;

8. When any proprietary land or “Shamlat land under Section 5”

has been bought under Road, Nallah, or Canal, but no

acquisition proceedings have been made by Govt. Instead,

people or owner/s have voluntarily given away the same,

process under Section 121 of Land Revenue Act, 1939 shall be

made.

9. If the shape of a field has not changed conspicuously with

respect to the one in map (Shajra) of previous settlement but

during measurement variation is found between old and new

area, no weight age shall be given to this variation, instead a

note regarding variation in measurement shall be recorded in

“Remarks”column and for all such cases, no proceedings

under section 121 Land Revenue Act, 1939 AD shall be given.”

19. The prosecution case proceeds substantially on two premises: first, that the land

having been mutated in favour of the erstwhile owners under Section 8 of the

Agrarian Reforms Act in 1992, its subsequent alienation in favour of the

petitioners was hit by Section 28-A of the said Act; and second, that Section 121

of the Land Revenue Act could be invoked only for determination of an existing

question of title and not for conferring ownership upon a person.

20. The material on record, however, indicates that the petitioners claim to have

entered into possession in the year 1987, whereas Section 28-A was brought into

operation subsequently. The mere fact that mutation under Section 8 came to be

attested in favour of the erstwhile owners in 1992 would not, by itself, establish

that possession was transferred to the petitioners only thereafter. Significantly, the

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investigating agency does not appear to have ascertained the actual date on which

possession changed hands and has proceeded on the assumption that such transfer

must have taken place subsequent to the mutation under Section 8.

21. The matter assumes further significance in view of the order dated 22.05.2025

passed by the Divisional Commissioner. The mutations in question were

examined by the competent revenue(revisional) authority, which noticed the plea

of oral gift, the possession of the petitioners and the constructions raised by them,

and declined to interfere with the mutations. The authority, however, found that

the transaction ought to have borne the requisite stamp duty and accordingly

directed its recovery along with associated charges.

22. The other limb of the prosecution case rests upon its construction of Section 121

of the Land Revenue Act. Section 121 operates in the field of preparation of the

record of rights and empowers the Settlement Officer, where a question of title

arises during settlement proceedings duly authorized under Section 22, to

determine such question in a summary manner. The determination is subject to

the statutory appellate remedy and remains binding upon the parties unless

displaced in accordance with law. In the present case, the settlement operations

themselves were authorized under SRO 314 and the mutations were attested by

the officer vested with the requisite statutory authority.

23. The prosecution nevertheless proceeds on the premise that Section 121 permits

determination of title only where the underlying mode of acquisition is otherwise

lawful and does not empower the Settlement Officer to recognize ownership on

the basis of an oral transaction. This construction has to be considered in the light

of Hidayat Bundobust, 2005, which, as relied upon by the petitioners and noticed

by the Divisional Commissioner, contemplated recognition during settlement of

cases involving oral gift, oral exchange or Shari Bay, subject to the prescribed

requirements, including possession.

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24. What is material for the present proceedings is that the mutations were not

attested by an officer lacking jurisdiction, but by a statutory authority exercising

powers during duly notified settlement operations. The correctness of the manner

in which that jurisdiction was exercised could undoubtedly be examined by the

competent appellate or supervisory revenue authority. Indeed, the mutations were

subjected to such scrutiny and were not interfered with by the Divisional

Commissioner.

25. An investigating agency may certainly investigate a statutory or quasi-judicial act

where there is material suggesting that the power was exercised dishonestly,

corruptly or pursuant to a criminal conspiracy. It cannot, however, substitute its

own interpretation of the statutory provision for that of the competent authority

and, on that basis alone, convert an allegedly erroneous exercise of statutory

jurisdiction into criminal misconduct. There must exist material, independent of

the alleged legal error, from which the requisite dishonest or corrupt intent can

prima facie be inferred.

26. In the present case, no allegation of payment or acceptance of illegal gratification

has been attributed to the petitioners or the Revenue Officers. The foundation of

the prosecution, as reflected from the material placed before the Court, is

essentially the alleged impermissibility of the mutations under Section 121, the

applicability of Section 28-A of the Agrarian Reforms Act and the consequential

non-payment of stamp duty.

27. The issue concerning stamp duty also stands on a distinct footing. The Divisional

Commissioner, while declining to interfere with the mutations, directed recovery

of the deficient stamp duty and associated charges, which, according to the

petitioners, have since been deposited. Thus, the fiscal consequence of the

transaction was treated by the competent authority as one requiring recovery of

the statutory dues rather than invalidation of the mutations.

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28. Viewed thus, the material relied upon by the prosecution would have to disclose

something more than an allegedly erroneous interpretation or application of the

revenue laws. Unless there is material indicating collusion, dishonest abuse of

official position or a deliberate exercise of statutory power for an unlawful

consideration or purpose, the mere fact that the investigating agency considers the

mutations legally impermissible would not, by itself, satisfy the essential

ingredients of criminal misconduct or conspiracy.

29. The distinction is fundamental: an erroneous exercise of statutory or quasi-

judicial power may expose the order to correction in accordance with the

remedies provided by law, but criminal liability requires the additional element of

culpable intent contemplated by the penal provision. In the absence of material

disclosing such intent, the legality of an adjudicatory order cannot, merely by

reason of a competing interpretation of the governing statute, be transformed into

a criminal offence.

30. The petitioners have also sought to draw support from the protection available to

officers exercising judicial or quasi-judicial functions. Reliance has been placed

upon the decision reported as 2000 SCC Online MP 297, wherein a Naib

Tehsildar, sought to be arrayed as an accused in relation to an order passed in

mutation proceedings, was held entitled to protection under Section 3(1) of the

Judges (Protection) Act, 1985, having exercised adjudicatory powers vested in

him by law. Reference has also been made to the decision reported as (2006) 1

SCC 266 for the proposition that where an authority exercises quasi-judicial

powers conferred by statute, the mere fact that the order passed by it is alleged to

be contrary to law would not, by itself, justify criminal prosecution for the

exercise of such jurisdiction. The petitioners accordingly contend that the

Settlement Officer, while exercising powers under Section 121 of the Land

Revenue Act, was acting in a quasi-judicial capacity and his decision cannot be

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converted into a criminal act merely because the investigating agency considers

the decision legally erroneous.

31. The principle governing accountability of officers exercising quasi-judicial

functions has also received consideration in the context of disciplinary

proceedings. In the decisions reported as (1999) 7 SCC 409 and Union of India v.

A.N. Saxena, (1992) 3 SCC 124, the Supreme Court emphasized the need for

caution while examining actions taken in discharge of judicial or quasi-judicial

functions. Such protection is, however, not absolute. Where the material indicates

that the officer acted with an improper motive, to confer an undue favour, or

otherwise than in good faith, the quasi-judicial character of the function would

not furnish immunity against appropriate proceedings.

32. The aforesaid principles have relevance to the present case because the Settlement

Officer was exercising statutory powers during settlement proceedings. The

crucial inquiry, therefore, is not merely whether the mutations were legally

correct, but whether there is material to indicate that the statutory jurisdiction was

exercised dishonestly or for an improper purpose. An error in the exercise of

quasi-judicial power and a dishonest abuse of that power occupy distinct fields;

the former cannot, without the additional element of culpable intent, be equated

with the latter.

33. There is yet another aspect of the matter. The prosecution proceeds on the footing

that the impugned mutations resulted in conferment of ownership rights upon the

petitioners. The legal effect of a mutation entry, however, has to be understood in

the settled context of revenue jurisprudence. In the decision reported as (1996) 6

SCC 223, the Supreme Court held that mutation of property in the revenue record

neither creates nor extinguishes title and is essentially relevant for fiscal purposes,

including collection of land revenue. The same principle was reiterated in the

decision reported as (2015) 14 SCC 784.

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34. Seen in this light, the allegation that the Settlement Officer, by the mere act of

attesting the mutations, conferred title upon the petitioners requires closer

scrutiny. An entry in the revenue record cannot, by itself, constitute the source of

title where none otherwise exists; nor can it extinguish a title subsisting under the

substantive law. The rights of the parties ultimately remain subject to adjudication

by the competent forum in accordance with law.

35. The prosecution has also relied upon the fact that part of the land was governed

by Government Order S-432 of 1996 and was, therefore, subject to restrictions

upon alienation. Even assuming that the transfer required prior permission or

otherwise contravened the conditions governing such land, the consequence of

such violation has to be determined under the governing statutory or regulatory

framework. The existence of a restriction upon alienation does not, without

anything further, establish that the Revenue Officer who recorded the

consequential mutation acted with the dishonest intention necessary to constitute

criminal misconduct.

36. In this context, reliance has also been placed upon the judgment reported as AIR

2017 J&K 14, arising out of refusal to register a sale deed on the ground that

permission for alienation had not been obtained. The relevance of the said

authority would have to be appreciated in the context of the legal consequence

attached to a transfer made in breach of a restriction upon alienation and, in

particular, whether such restriction renders the underlying transaction void or

merely exposes it to the consequences contemplated by the governing law. It was

held as under:-

“11. After the petitioner No. 1 was conferred with proprietary

rights over the land in terms of order of 1966, the said order outlived its

life to the extent of petitioner No. 1. His rights thereafter were governed

by the Transfer of Property Act, Land Alienation Act and Agrarian

Reforms Act. The Act of 1976, in view of the mandate contained in its

section 31, did forbid alienation of land defined under it. However,

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section 31 of the Act of 1976 was omitted in the year 1997. The express

provision, forbidding sale of the land, defined in the Act of 1976, was,

thus, removed by the Statute itself. The condition contained at

paragraph 04 of the order of 1966 for seeking permission for alienation

of land, in view of the provisions of the Act of 1976, more particularly,

section 42(1), thus, has ceased to be in operation. Even otherwise,

attaching the condition of seeking permission for alienation of land in

respect of which, proprietary rights stand conferred, is against the

concept of exercising complete dominion over the land, of which

proprietary rights were conferred on petitioner NO.1. After becoming

absolute owner of the land, restriction could not be imposed for its

alienation. Such a condition could be imposed only by an act of

legislation. Initially a like condition was imposed in terms of section 31

of the Act of 1976 but the said provision was, subsequently, omitted. The

land was permitted to be alienated to a limited extent for the purpose of

construction of residential house.

12. It appears that the condition of seeking previous permission from the

Government for alienation of land, in respect of which, ownership

rights were conferred by the government as the person was holding

the land as tenant under the State, was done with the purpose to

ensure that the benefit of land accrues to the grantee and he uses it

for agriculture purpose.

13. In earlier times, agriculture activity was the backbone of economy of

the State. The land, which was given for agriculture purposes to a

state subject, was to ameliorate the sufferings of such person/his

family. Now the times have changed. The agriculture activity is no

more the main economic activity of the State. The condition of

seeking pervious permission of the Government for alienation of

land, which was given for agriculture purposes, in terms of

paragraph 04 of the order of 1966, is rendered otiose and will not

effect right of the owner of land to alienate the same provided other

statutory requirements are fulfilled for such alienation.”

37. The aforesaid legal position substantially answers the prosecution case founded

upon the alleged prohibition against alienation. If the land held by the erstwhile

owners, whether under Section 8 of the Agrarian Reforms Act or Government

Order No. S-432, was not subject to an absolute prohibition against transfer in the

manner suggested by the prosecution, the very premise on which the mutations

have been treated as inherently illegal would require reconsideration.

38. This aspect assumes significance also in view of the order passed by the

Divisional Commissioner, who, upon examination of the mutations, did not find

ground to annul them and treated the deficiency essentially as one relating to

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payment of stamp duty and associated charges. The petitioners claim to have

deposited the amount so determined. The enquiry conducted at the instance of the

competent revenue authority also did not result in setting aside the mutations. In

such circumstances, a criminal prosecution cannot be sustained merely on the

investigating agency adopting a construction of the governing revenue provisions

different from that accepted by the competent statutory authority, unless the

material collected during investigation independently discloses the ingredients of

the offences alleged.

39. The contention of the respondents that the petitions have been rendered

ineffective on account of filing of the charge-sheet during their pendency is

equally untenable. The subsequent filing of a final report does not, by itself,

denude this Court of its jurisdiction to examine the legality of the criminal

proceedings. Where the foundational allegations, even when taken at their face

value, do not disclose the ingredients of the offence alleged, the Court is not

precluded from exercising its jurisdiction merely because investigation has

culminated in presentation of the charge-sheet.

40. In this regard, reference has been made to the judgment of a Coordinate Bench of

this Court reported as JKJ Online 88119, arising out of an allegation under

Section 5 of the Prevention of Corruption Act. The allegation therein also

involved departure from departmental procedure resulting in pecuniary advantage

to the beneficiaries. The Coordinate Bench, relying upon the decision of the

Supreme Court in C.K. Jaffer Sharief v. State (Through CBI), (2013) 1 SCC 205,

examined whether violation of prescribed procedure, coupled with the resulting

pecuniary advantage, would by itself satisfy the ingredients of criminal

misconduct it was held therein,

“23. In the present case, the prosecution records reveal only violation of

technical guidelines as also the Departmental and procedural norms on

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the part of the petitioners. The prosecution has failed to collect any

material to show that that petitioner did know with dishonest intention

with a view to obtain for themselves or any other person any valuable

things or pecuniary advantage”.

24. In view of what has been discussed hereinabove, it is clear that

even if the material collected by the Investigating Agency against the

petitioners is taken to be correct as its face value and the allegations

made in the charge-sheet are also accepted as correct, still then, the

charges for offences under Section (5) (1) (C) & (d) of PC Act, or for that

matter, any other charge is not made out against the petitioners. Their

non-adherence to the procedures and technical guidelines can, at best,

give rise to a cause for initiating a regular Departmental enquiry against

them, but not a criminal prosecution.”

41. The principle assumes relevance in the present case because an irregularity,

procedural infraction or erroneous exercise of official power cannot, merely

because some benefit has accrued to another person, be equated with criminal

misconduct. The prosecution must disclose the additional elements required by

the penal provision, including the culpable abuse of official position

contemplated thereunder. The existence of a pecuniary advantage may be a

relevant circumstance, but cannot substitute proof of the ingredients constituting

the offence. Consequently, the filing of the charge-sheet does not foreclose

scrutiny of the fundamental question whether the material collected by the

investigating agency, even if accepted as it stands, discloses criminal misconduct

and conspiracy, or merely alleges an irregular or legally erroneous exercise of

statutory authority. It is this distinction which must govern the exercise of

jurisdiction in the present petitions.

42. Dealing with another case reported in 2025 SLJ 884, thereto FIR has been

registered on the basis of joint surprise check raising accusation against the

accused for offences under Section 5(1)(d) of the Prevention of Corruption Act.

The court found that what the prosecution record reveals that the accused may

have violated departmental norms while incurring expenditure out of the

development funds but that only indicates in para 30 and 31 as under: -

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“30. In the present case, the prosecution records reveal that the petitioner

may have violated departmental norms while incurring expenditure out of

the Hospital Development Fund but, nonetheless, the only intention of the

petitioner in doing so was to take care of extreme urgency that had arisen

on account of peculiar circumstances which had prevailed pursuant to

Amarnath Land row and the said action of the petitioner was even ratified

by the Hospital Development Committee. Similarly, the petitioner may have

also been found lacking in exercising a proper control over the accounts

wing of the hospital but because he was not the Drawing and Disbursing

Officer of those two particular accounts, therefore, it cannot be inferred

that he was a part of the conspiracy in so far as embezzlement of funds out

to those two-account head is concerned. Mere lack of supervision on the

part of the petitioner cannot form a basis for roping him in the conspiracy,

particularly when he is not a signatory to the account books pertaining to

those two account heads.

31. It is in the face of aforesaid facts and circumstances that the both the

Enquiry Committees have exonerated the petitioner of the charges levelled

against him and the Government has only issued a warning against him on

account of his lack of supervision over the accounts wing. In such

circumstances, the ratio laid down by the Supreme Court in Ashoo

Surendranath Tewari’s case (supra) would apply on all fours to the present

case. Therefore, the petitioner, on the basis of the material collected by the

Investigating agency during the investigation of the case and on account of

the fact that he has been fully exonerated by the two enquiry committees in

the regular departmental proceedings, cannot be made to suffer the

criminal prosecution emanating out of the impugned FIR. In these

circumstances, this Court finds the present case as the fit one for exercising

its powers under Section 482 of Cr.P.C for quashing the criminal

proceedings against the petitioner so as to secure the ends of justice and to

prevent abuse of process of law.”

43. In the backdrop of the aforesaid discussion, the mere attestation of mutations by

the Settlement Officer in favour of the petitioners would not, by itself, attract

Section 5(1)(d) of the Prevention of Corruption Act or Section 120-B RPC. The

prosecution material does not disclose any allegation of illegal gratification or

other pecuniary advantage having been obtained by the Revenue Officials from

the petitioners. Nor is there any material indicating a prior meeting of minds

between them for securing attestation of the mutations through an abuse of

official position. For an offence of conspiracy, there must be material from which

an agreement or meeting of minds to commit an illegal act, or a legal act by

illegal means, can prima facie be inferred. Such an inference cannot rest merely

upon the fact that the petitioners derived a benefit from orders passed by the

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Revenue Officers in exercise of their statutory powers. This assumes greater

significance when the erstwhile owners have neither alleged any fraudulent

transfer nor successfully questioned the mutations.

44. The foundation of the prosecution case is essentially that the Settlement Officer

could not, in law, have attested the mutations in exercise of powers under Section

121 of the Land Revenue Act. The mutations, however, were amenable to

scrutiny before the competent revenue authority and have subsequently been

examined by the Divisional Commissioner, Jammu, who declined to interfere

with them. Once the statutory appellate authority has sustained the mutations, the

investigating agency's contrary understanding of the scope of Section 121 cannot,

in the absence of independent material disclosing corrupt intent or conspiracy,

constitute the sole foundation for criminal prosecution. In case the plea of

respondents is taken to be legally tenable, then the appellate/revisional authority

too needs to be put to prosecution.

45. The issue is not whether an order of a statutory authority can ever be subjected to

criminal investigation. It undoubtedly can, where there is material indicating that

the order was procured or passed pursuant to bribery, dishonest abuse of office,

fraud or a criminal conspiracy. What is impermissible is to equate an alleged error

in the exercise of statutory jurisdiction, without the requisite criminal element,

with an offence under the Prevention of Corruption Act.

46. Viewed thus, continuation of the proceedings merely on the premise that the

investigating agency considers the mutations technically impermissible under

Section 121 would amount to permitting its interpretation of the revenue law to

override the determination made within the statutory hierarchy, without any

independent material disclosing criminality. The filing of the charge-sheet during

the pendency of these petitions does not alter this position. This Court retains

jurisdiction to examine whether the allegations contained in the FIR and the

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material forming part of the charge-sheet, taken at their face value, disclose the

essential ingredients of the offences alleged. Where such ingredients are absent,

continuation of the criminal proceedings would serve no legitimate prosecutorial

purpose and would amount to an abuse of the process of law.

47. The aforesaid conclusion also finds support from the principle reiterated by the

Supreme Court in (2024) 12 SCC 181. Referring to Indian Oil Corporation v.

NEPC India Ltd. and G. Sagar Suri v. State of U.P., the Supreme Court cautioned

against the tendency to give a criminal complexion to disputes which, in

substance, fall within the civil domain. It was reiterated that criminal process

ought not to be employed as a means of exerting pressure for resolution of

disputes which do not otherwise disclose the commission of a criminal offence.

48. The principle, however, is not that the existence of a civil, revenue or statutory

remedy excludes criminal prosecution in every case. Civil and criminal

consequences may coexist where the allegations independently disclose the

ingredients of a criminal offence. The relevant inquiry is whether,

notwithstanding the civil or revenue character of the dispute, the material placed

on record discloses the requisite criminality.

49. Tested on this principle, the controversy in the present case essentially emanates

from the legality of mutations attested by the Settlement Officer in exercise of

powers under Section 121 of the Land Revenue Act, the applicability of the

restrictions contained in the Agrarian Reforms Act and Government Order S-432,

and the fiscal consequence arising from non-payment of stamp duty. These

matters have also been subjected to scrutiny within the statutory revenue

hierarchy.

50. In the absence of independent material indicating bribery, dishonest abuse of

official position or a prior meeting of minds between the petitioners and the

Revenue Officials, an alleged error or irregularity in the exercise of statutory

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jurisdiction cannot, merely by describing the resultant benefit as an undue

advantage, be converted into criminal misconduct or conspiracy. To permit the

prosecution to continue solely on such foundation would amount to giving a

criminal colour to what, on the material placed before the Court, essentially

remains a dispute concerning the legality and effect of proceedings undertaken

under the revenue laws. The criminal process cannot be employed to substitute

the statutory mechanism provided for correction of an allegedly erroneous

revenue adjudication. Where the foundational facts, even if accepted as alleged,

do not disclose the essential ingredients of the offences invoked, continuation of

such proceedings would amount to an abuse of the process of law. For the reasons

so stated, these petitions succeed are thus allowed, thereby quashing the criminal

proceedings initiated against them on the strength of case FIR No. 05/2021 dated

03.02.2021, registered by the Anti-Corruption Bureau, Jammu, under Section

5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act, SVT.

2006 and Section 120-B RPC in so far as it relates to the petitioners herein.

(Sanjay Parihar)

Judge

Jammu

17.09.2026

Rahul Sharma

Whether the judgment is speaking? : Yes

Whether the Judgment is reportable? : Yes