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2005 DIGILAW 383 (JK)

Gh. Rasool Bhat v. State

2005-12-27

BASHIR AHMAD KIRMANI

body2005
1. Impugned in this petition is an order purported to have been passed by Special Judge Anticorruption Srinagar on 28.02.2004, on petitioners application for implementation of an earlier order dated 16.01.2002, on the ground that the same was passed in his absence thereby depriving him of the interest payable there under and as such, involves violation of the principles of natural justice particularly because of having been passed in total disregard to the factual and legal situation attending the matter and without proper application of mind. Accordingly the petitioner seeks quashment thereof with a direction to respondent No.2 for payment of interest to the petitioner in terms of the Anticorruption Courts Judgment dated 16.01.2002. During course of his threshold submissions, petitioners counsel has further elucidated the matter by stating that a particular amount otherwise payable to petitioner was frozen by concerned bank under orders of the Court below but at conclusion of the trial it was directed to be released in his favour along with, interest, which was not done and hence the petition. 2. I have heard learned counsel and considered the matter. It appears that after having a particular amount frozen in connection with trial of the case being FIR No. 16/93 of Vigilance Organisation under sections 5(1) and 5(2) of Prevention of Corruption Act read with section 420, 467,467-A, 201 and 120-B of RPC, the Court of Special Judge Anticorruption vide order dated 16.01.2002 directed the bank to release the said amount in favour of one Gh. Rasool Bhat S/o Amma Bhat R/o Furrah Anantnag along with interest accumulated there upon. The Bank in compliance of said order agreed to payment of the amount without interest as it had been kept in a current account and as such, did not earn any interest at all. This prompted the petitioner to file another application before the Court below on 14-02-2004 which was disposed of under the impugned order with an observation that present petitioner Gh. Nabi Beigh had no locus-standi in the matter because the amount of Rs.2,95,1OO/- earlier frozen had been directed to be released in favour of one Gh. Rasool and not the present petitioner who had no claim thereto whatsoever. While dismissing his claim, the Court below also directed that aforesaid amount be paid to the original beneficiary of its order dated 16.01.2002 namely Gh. Rasool Bhat whenever he appears. 3. Rasool and not the present petitioner who had no claim thereto whatsoever. While dismissing his claim, the Court below also directed that aforesaid amount be paid to the original beneficiary of its order dated 16.01.2002 namely Gh. Rasool Bhat whenever he appears. 3. Aggrieved thereby, the present petitioner on 4th of March 2002 filed another application before court below requesting for modification of order dated 16.01.2002 to the extent of making the amount aforesaid payable to him instead of Gh. Rasool Bhat, the original beneficiary, as his attorney; on the ground that he had already made payment of said amount to said Gh. Rasool Bhat. After hearing him and the other side, Court below dismissed the modification application also on the ground that allowing modification would amount to review of earlier order which was not provided for. Not satisfied therewith the petitioner litigated the matter in this Court through Criminal Revision No. 25/04 captioned as "Gh. Rasool Bhat Vs. State" which too was dismissed by a bench of this Court on 21.10.2005, with an observation that the order impugned in revision petition being interlocutory could be rejected on thatgroundonly but incidence Constance™s was dismissed after full consideration of the merits involved. The Court of Special Judge Anticorruption Srinagar only after that order that the present petition appears to have been instituted impugning the original order as passes it. 4. In view of the sequence of events and developments catalogued above even irrespective of whatever merit it can claim to have, the petition appears to be grossly miss-conceived as being directed against an order of lower Court which after dismissal of the revision petition aforesaid has merged into the order of this Court dated 21.02.2005 and could not be challenged independent of that, for the simple reason that in face of the aforesaid revisional judgment an isolated consideration of the order upheld thereby, independent thereof is not only fraught with the danger of resulting into a conflict of opinion in the matter, but also appears to be absurd, for the reason that even if the order impugned herein is set-aside, the order of this Court passed in the aforementioned revision petition would stand, and as such the disposal of this petition, the way it is sought, would only create an anomalous situation, not permissible, and on that sole ground the writ petition merits straight dismissal. 5. 5. Faced with that prospect, the petitioners stated instead of a writ petition under the Constitution that the present petition is meant to be, it be treated as a petition under section 561 - of Code of Criminal Procedure directed against the aforesaid revisional order of this Court. The plea appears to be too far fetched to merit consideration, and so for twin reasons. First, that after having upheld the impugned order in exercise of revisional power, it would not be permissible for this Court to reopen the same in exercise of power under section 561-A Code of Criminal Procedure; and, secondly, that on its own merit the petitioners plea/ argument does not appear to have any substance, first, because, the original amount directed to be released by the Court below has been so released in favour of one Gh. Rasool Bhat and not the present petitioner, which reduces him to a stranger in so far as the benefit under that order is concerned, and secondly that the expression "with interest thereupon" as used in trial courts order of 16.01.02, with reference to the amount directed to be released, would only mean whatever interest the amount has earned while deposited in a particular account, and not that it should necessarily be deemed to have earned any amount of interest. Admittedly the amount so deposited/frozen has been kept in a current account, which as per bank rules would not earn any interest, and while that is so the respondent bank can obviously not be compelled to pay interest thereupon. This goes to the very root of the matter in view whereof the whole claim of interest appears to be unfounded. This coupled with the total lack of petitioners locus- standi in the matter, renders it quite unnecessary for me to consider whether an order passed in exercise of revisional jurisdiction by a bench of this Court would be open or amenable to exercise of jurisdiction under section 561-A of the Code of Criminal Procedure. 6. For all that has been discussed above, the petition is dismissed at the very threshold along with all connected CMP(s).