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2002 DIGILAW 6 (JK)

Ab. Majeed Khan v. State Of J. &K.

2002-01-09

SYED BASHIR-UD-DIN

body2002
1. Through the medium of this petition under section 561-A Cr.P.C. the petitioner, namely, Abdul Majeed Khan, has sought indulgence of this court for quashing of proceedings in case titled as State vs. Abdul Majeed Khan, for offences u/s 420,467 and 468 RPC and 5(2) Prevention of Corruption Act, 2006, pending decision before the learned Special judge Anti-Corruption, Srinagar (Kashmir). It is inter-alia maintained in the petition that the petitioner was serving as clerk in the Ancilliary Medical Training School, Srinagar in the year 1981 where from he has since retired on superannuation. That the said Ancillary School is under the control of the State Medical Faculty headed by Director Health Services, who is its ex-officio president. The faculty is run with a view to impart training and conduct examinations of various Ancillary Medical Branches such as Nurses. Ancillary Nurses, Mid wives, Dental Technitians, Medical Assistants etc. That the candidates are trained in two A.M.T. Schools of the state, one attached to the S.M.H.S. Hospital, Srinagar and the another attached to S.M.G.S. Hospital, Jammu. That the Ancillary Nurses Mid wives (for short ANM) course is spread over two parts. The candidates passing both parts of the course is entitled to the Diploma from the State Medical Faculty (Council) enabling to appear for selection as ANM. That in the year 1981 when the petitioner was posted in AMT School Srinagar, a bogus/fake certificate allegedly surfaced during the course of interview conducted by the State Health Department for appointment of ANM. It was allegedly produced by one Halima D/o Ali Muhammad Pampori R/o Batamaloo for selection as ANM. That the matter came to be reported to the Govt. leading to filling of a case FIR No. 18/1982 at police station Vigilance Organisation, Kashmir. That the investigation was conducted by one Hira Lal Koul, who on the basis of communal bias, screening the real culprits, manipulated the case against the petitioner who is in no way associated with the imparting of training to the trainees for said course or with the issuance of Certificates/Diploma to the trainees. That the registration of the case ultimately culminated into production of challan against the petitioner before the learned Special Judge. Anti corruption , Srinagar on 30-07-1985. That the case is pending adjudication before the said court from the last 15 years. That the registration of the case ultimately culminated into production of challan against the petitioner before the learned Special Judge. Anti corruption , Srinagar on 30-07-1985. That the case is pending adjudication before the said court from the last 15 years. That in the said case it is alleged by the prosecution that the Diploma Forms were printed by M/S B.R. Company and Fictitious particulars of Haleema, who allegedly produced the certificate, were tempered by a stenographer, namely. Piyaray Lal Bhat ,employee in the Health Department. That the investigation officer, on account of bias manipulated the case against the petitioner in order to save the real culprits. That the defence taken in the case is that there is no valid sanction granted for prosecution of the petitioner and the material on record discloses not even a prima facie case for charge against the petitioner. That the prosecution evidence in the case came to be recorded during the period from 1985 to 1994. That after closer of evidence the statement of the petitioner was recorded under Section 342 Cr.P.C. and the case was finally argued before the trial court and during the course of arguments it was found that no sanction was available on record for prosecution of the accused petitioner, faced with this situation the prosecution filed an application before the trial court for leave to place on record the original sanction and the learned trial court, instead of delivering the judgement in the main case, came to allow the prosecution to place the original sanction vide its order dated 23-12-2000 in sheer abuse of process of law and abuse of process of court. That the said order is bereft of any merit and has resulted into mis-carriage of justice. That the said order is passed by the trial court u/s 540 Cr.P.C.. The powers vested by this sanction has been granted for prosecution in the year 1988, if that be so, the sanction is of no avail because the sanction ought to have been granted for prosecution of the accused before the challan was filed. that the power of the trial court to try the petitioner accused or take cognizance of the case u/s 5(2) PC Act, is dependent upon the grant of sanction and in absence of a valid sanction, the court has no jurisdiction to take cognizence of the case and to try the petitioner accused. that the power of the trial court to try the petitioner accused or take cognizance of the case u/s 5(2) PC Act, is dependent upon the grant of sanction and in absence of a valid sanction, the court has no jurisdiction to take cognizence of the case and to try the petitioner accused. That investigation of the case was entrusted to one Hira Lal, police Inspector, who is not empowered to conduct the investigation of the case registered u/s 5(2)Pc Act, the investigation is, therefore, in contravention of statutory provisions of J&K Prevention of Corruption Act, 2006. That the speedy and fair trial in a criminal case is essential imperative of right to life and liberty guaranteed under Article 21 of the constitution of India. That the pendency of the case has remained a threat to the petitioner for last 20 years. 2. Heard Mr. G.A.Lone, advocate, appearing for the petitioner and also Mr. M.H.Attar, learned AAG, appearing for the state. 3. Perusal of the record reveals that the challan in the case came to be instituted before the trial court on 30-07-1985. After framing of the charge on 25-10-1985 for offences punishable u/s 5(2) of P.C, Act and offences punishable u/s 420,467 and 468 RPC, which are serious in nature, against the petitioner/accused, the prosecution came to be directed to produced their evidence in a bid to substantiate the charge against the accused. The prosecution, during the course of about nine years examined 11 witness out of listed 13 witness in the case and the case for prosecution evidence was closed for evidence on 26-10-1984. during this period more than three years were consumed for calling the enquiry report of Mr. J.L.Pandita, with respect to enquiry conducted in the case. After closure of prosecution evidence and examination of the petitioner/accused u/s 342 Cr.P.C. the petioner/accused was directed to lead his defence on 25-11-1994, who took about two years to produce his defence evidence and the case got also delayed because the accused/petitioner came to file an application on 10-03-1995 for re-calling the prosecution witnesses for recross examination, which came to be decided by the trial court on 01-12-1995. after closure of defence evidence on 28-10-1996 the case came to be adjourned till 27-11-1999 because of the absence of his counsel. after closure of defence evidence on 28-10-1996 the case came to be adjourned till 27-11-1999 because of the absence of his counsel. Thereafter the trial court could not deliver the judgement either because of pre-occupation or because of Kashmir Band or because of transfer of the CPO, or because of the absence of the accused petitioner and finally petition for leave to produce the sanction order came to be filed which came to be decided by the trial court on 23-12-2000 by accepting the said prayer of the prosecution. 4. All this goes to show that it is not the prosecution alone but the accused petitioner as well who has contributed towards the delay of proceedings in the case, therefore, the accused/petitioner cannot turn round and say that his right of speedy trial, guaranteed to him under Art. 21 of the constitution of India, has been infringed when the right has not been invoked by him from last several years. (See 1992(1) SCC page 225 (para84). 5. Record of the case shows that the proceedings in the case stand already concluded and the record of the sanction file stand produced. This shall be pertinent to mention here that during the course of arguments, the learned Additional Advocate General, Mr. M.H.Attar expressed that the prosecution in the case does not want to lead any evidence in a bid to prove the sanction but what simply to argue the case. This being so, accepting the prayer of the petitioner at the arguments are to be advanced by the parties, will amount to restraining the trial court to decide the case on merits, and in turns will amount to interfering with the ordinary course of law and substituting judgement of this court for the judgement of the trial court, trying the case. 6. Beside this, the other pleas raised by the petitioner, like Diploma Forms were printed by M/s B.R. Company and fictitious particulars of Haleema were typed by a stenographer namely Piyaray Lal, employed in the Health Department, Manipulating the case against the petitioner/accused, that proceedings launched without valid sanction, renders the proceedings null and void, can be well raised before the trial court at the time of a arguments in the case. On this account also the petition is not maintainable. On this account also the petition is not maintainable. The authority cited as AIR 2001 Sc, 2989 relied by the learned counsel for the petitioner is not applicable to the facts of the present case. 7. From the facts and circumstances of the case and from the petition in hand, it appears that it is the order dated 23-12-2000 by virtue of which leave to place original sanction on the record of the files has been granted is assailesd. This order is an inter-locutory order and cannot be challenged in petition under section 561-A Cr.P.C. or by a criminal Revision, However, this may be grossped that permission to lead additional evidence is not abuse of law or abuse of the process of the court. If the Magistrate, while considering the application filed u/s 540 Cr.P.C. finds that there is any negligence or laches on the part of a party by not examining a witness who is material in the case, he is absolutely within his powers to examine such witness at any stage of the case enabling him to render just decision in the case. In this behalf reference is made to a supreme court judgement titled Shailender Kumar Vs. State of Bihar, reported as AIR 2002 Sc 270. 8. Viewed thus, the petition in hand is not sustainable and same is disallowed, however, with a direction to the trial court to decide the case with promptitude latest by one month, even by resorting to its day-to-day hearing. 9. Let a copy of this order be sent to the trial court for information.