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2007 DIGILAW 22 (JK)

R. S. Gill v. State

2007-03-08

J.P.SINGH, NIRMAL SINGH

body2007
Per Nirmal Singh, J. 1. A complaint was received from one Sh V.K. Gupta, S/o Sh Manga Ram Gupta, R/o 17/3, Trikuta Nagar, Jammu by the Dy.Inspector General of Police, Crimes & Railways, Jammu. The complaint was with regard to supply of sub standard timber by the Forest Department. On receipt of the complaint, a preliminary enquiry was initiated and entrusted to the Central Investigation Team Hqrs, C&R, J&K, Jammu. A prima facie case was found during the preliminary investigation and on this, an FIR No.24/2005 came to be registered in Police Station Crime Branch, Jammu, under Sections 420, 467, 468, 471 and 120-B RPC, and the investigation was initiated. 2. Being not satisfied with the investigation conducted by the Crime Branch, Jammu, the present petitioner who is a Journalist by profession filed this petition in public interest being a matter of public importance with the following substantive prayers:- "(i) that the Honble court be pleased to monitor the investigation of FIR No. 24/2005 registered by Crime Branch Jammu U/S 420, 467, 468, 471, 120-B RPC in view of the peculiar facts and circumstances and also the public interest involved in the matter; & (ii) Commanding the respondents 8 to 10 to fairly and properly conduct and complete and investigation expeditiously against every person involved in the multi crore timber supply scam irrespective of position and status of that person. (iii) Commanding the respondents 8 to 10 to get the 14 Bogies containing 5000 sleepers checked/examined by Independent Expert so as to ensure fairness in the investigation. Or In the alternative the investigation be assigned/transferred to the premier investigating Agency (Central Bureau of Investigation) so that the investigation is being conducted fairly and without any local pressure..." 3. When this petition came up for hearing on 4th of Aug05, following order came to be passed:- "Way back in 1997, their Lordships of the Supreme Court in T.N. Godavarman Thrumulkpad v. Union of India (1997)2 SCC 267, in regard to the State of Jammu and Kashmir have given certain directions with regard to the trees and timber. One of the directions was that the movement of the trees/timber sawn or otherwise from the State shall, for the present, stand suspended, except for the use of DGS & D Railways and Defence. One of the directions was that the movement of the trees/timber sawn or otherwise from the State shall, for the present, stand suspended, except for the use of DGS & D Railways and Defence. Any such movement for such use was to be effected after due certification, consignment-wise made by the Managing Director of the State Corporation which was to include certification that the timber has come from State Forest Corporation sources (emphasis supplied). The Supreme Court further directed that any such movement of the timber from the State shall be undertaken by the State Forest Corporation itself, Jammu and Kashmir Forest Department or the receiving agency. A complaint came to be filed on 20.06.2005 against officers/officials of the J&K Forest Department and others regarding supply of sub standard timber to DGS & D. On receipt of the complaint preliminary enquiry was initiated and entrusted to the Central Investigation Team Hqrs. C&R, J&K, Jammu. On preliminary investigation the Investigating Team on prima facie finding substance in the complaint recommended for registration of a formal FIR and accordingly, on the approval from IGP C&R, J&K vide their letter No. Hq/Cr/Clt-J/35/2005 dated 02.07.2005, case FIR No. 24/2005 under Sections 420, 467, 468, 471, 120-B RPC was registered in Police Station Crime Branch, Jammu. During the course of investigation, Railway authorities were requested for making necessary arrangements to move back the timber loaded wagons from Railway Station Samba to Railway Station Bari Brahmana/Jammu, so that the stocks could be verified in regard to quality and quantity at the destination in presence of the consignees and also Joint inspection by the Quality Control Committee comprising of representatives of the Forest Department, Consignee and Control of Quality Assurance Govt. of India. It appears that in order to stall investigation, the original railway receipts were sent to the consignees on 27.06.2005 though the investigation had already been undertaken by the investigating agency. From the reading of the status report, an impression is gathered that the officers of the Forest Department are dilly-dallying in providing labour and transportation for unloading of the seized timber. During the investigation and scrutiny by the investigating team, it has come out that private timber trades, who were five in numbers, have supplied timber to the non-civilian authorities through DGS&D through Forest Department (Conservator of Forests Central Circle Srinagar/Jammu). Prima facie, this action is against the specific directions of the Supreme Court. During the investigation and scrutiny by the investigating team, it has come out that private timber trades, who were five in numbers, have supplied timber to the non-civilian authorities through DGS&D through Forest Department (Conservator of Forests Central Circle Srinagar/Jammu). Prima facie, this action is against the specific directions of the Supreme Court. Not only this, during the scrutiny of the record, it has been noticed by the investigating team that for the last two years the private timber traders have supplied 7958.318 Cu.Mtrs of Timber (Deodar/Chir/Fir) to non-civilian authorities through Director General of Supplies and Disposals, New Delhi, for which an amount of Rs.17,16,32,531/- has been realized during the year 2003-04 while as payment of Rs.16,20,66,496 has been made to the private timber traders/suppliers. It is yet to be investigated by the investigating agency as to under what circumstances timber was purchased by the Forest Department from the private traders for supplying the DGS&D, when according to the judgment of the Supreme Court, timber had to come only from the source of J&K State Forest Corporation and movement of the timber could to be undertaken by the Forest Department, J&K Forest Corporation or the receiving agency......." 4. On 12th of Sept05, following order came to be passed by this court:- "......In such circumstances, we are of the view that the Crime Branch, Jammu, has miserably failed to investigate the scam effectively and it appears that the Crime Branch, Jammu, is behaving/acting as a Government Department rather than an Investigating Agency. Since the nexus between influential timber traders and top bureaucrats, and involvement of politicians too, cannot be ruled out, we are of the view that it would be appropriate and also in public interest to entrust the investigation to the premier Investigating Agency of the country, i.e. CBI. Accordingly, it is so ordered. The Director, CBI, New Delhi, on the basis of FIR No.24/2005 under Sections 420, 467, 468, 471, 120-B RPC registered with police station, Crime Branch, Jammu, on 2nd July, 2005, shall formally register a case. The entire material so far collected by the Investigating Agency, i.e. Police Station, Crime Branch, Jammu, shall be handed over to the CBI. The Director, CBI, shall entrust the investigation to an Officer not less than the rank of a Deputy Superintendent of Police CBI. The entire material so far collected by the Investigating Agency, i.e. Police Station, Crime Branch, Jammu, shall be handed over to the CBI. The Director, CBI, shall entrust the investigation to an Officer not less than the rank of a Deputy Superintendent of Police CBI. Till such time the CBI formally takes over the investigation as directed above, the Crime Branch, Jammu, shall continue with the investigation...." 5. In pursuance of the aforesaid order, the CBI has completed the investigation and report has been presented before the court of CJM, Jammu, under Section 173(2) of the Criminal Procedure Code and the learned CJM, Jammu, has prima facie found the case against the applicant/accused and the charges have been framed. 6. The applicant Kuldeep Singh has filed two CMPs. In one of the CMP, a prayer has been made to dismiss the writ petition and in other, a direction is sought to respondents to release the seized timber in his favour or to dispatch the same to the consignee destination of DGS&D Army Ordinance Depot, New Delhi. 7. Mr ZA Shah, learned senior counsel appearing for the accused submitted that the order passed by this court directing the CBI to hold the investigation has been passed at the back of the applicant. It is stated that the present writ petition is not maintainable. He contended that when the petition itself is not maintainable, then no such direction can be issued without hearing the affected party. 8. We have considered the submission of Mr Shah, learned Senior counsel appearing for the applicant/accused in depth and perused the record. 9. It is settled proposition of law that normally the investigation should not be taken from the hands of the State Investigating Agency but when there are certain lapses in conducting the investigation, the same can be ordered to be done by the CBI or any other independent agency and this would be in public interest. As noticed above, this court while passing order dt. 12th of Sept05, was of the opinion that the investigation was not being conducted properly by the State Investigating Agency and due to this lapse on the part of the said Agency, this court was well within its competence to entrust the investigation to the CBI or an independent Agency. As noticed above, this court while passing order dt. 12th of Sept05, was of the opinion that the investigation was not being conducted properly by the State Investigating Agency and due to this lapse on the part of the said Agency, this court was well within its competence to entrust the investigation to the CBI or an independent Agency. This court while scrutinizing the record of the investigating team found that in two years, the private timber traders have supplied 7958.318 Cu.Mtrs of Timber to non civilian authorities through Director General of Supplies and Disposals, New Delhi for which an amount of Rs. 17,16,32,531/- has been realized during the year 2003-04 and the payment of Rs.16,20,66,496 has been made to the private timber traders, which was in violation of the Supreme Court directions given in T.N. Godavarmans case (supra). As per the directions of the Supreme Court, the timber had to come only from the source of J&K State Forest Corporation and the movement of the timber could be undertaken by the Forest Department, Jammu and Kashmir Forest Corporation or the receiving agency. This court had also directed for physical verification of the timber in question by the investigating agency and unloading of the timber at an appropriate place where the timber could be restored. A committee of experts was constituted which was headed by Sh PC Kapoor, Chief Conservator of Forests, Jammu, and two members namely Dr C.M. Seth, Chief Wild Life Warden and Sh Brij Mohan Sharma, DFO, Kathua. It was also revealed from the record that the Central Investigating Team had directed the Managing Director, J&K State Forest Corporation to join the investigation but he did not join. The Commissioner/Secretary, Forest Department was directed to collect the information from the J&K Forest Corporation and Forest Department regarding the payment which was made to the private timber traders from the date of passing of the Judgment by the Supreme Court in the case aforementioned. But the Central Investigating Team did not take any serious step for investigation as per the directions of this court nor the accused was arrested. However, from the record it was revealed that payment of Rs.80,84,75,758 was made to the private timber traders for supply of timber. But the Central Investigating Team did not take any serious step for investigation as per the directions of this court nor the accused was arrested. However, from the record it was revealed that payment of Rs.80,84,75,758 was made to the private timber traders for supply of timber. Therefore, when the State Investigating agency was trying to shield the culprit, this court was left with no option but to hand over the investigation to the CBI. 10. In State of Bihar and another v. Ranchi Zila Samta Party and another, AIR 1996 SC 1515, when there was large scale defalcation of public funds, fraudulent transactions and falsification of accounts to the tune of around Rs. 500 crores in the Animal Husbandry Department of the State of Bihar, and the investigation was entrusted to the CBI after it was taken away from the State police, their Lordships of the Supreme Court held as under:- "In view of the contentions, the question that arises for consideration is whether this Court would be justified in interfering with the order passed by the High Court. The parameters of the power of the High Court under Article 226 of the Constitution to direct an investigation by the C.B.I., though without the consent of the concerned State is the subject matter of a reference pending consideration of a Constitution Bench of five Judges of this Court......... ............. The only question then is whether this is a fit case for our interference under Article 136 of the Constitution? The exercise of the power under Article 226 of the Constitution in a public interest litigation was not to give any advantage to political party or group of people, as apprehended by counsel for the appellants. It was also not to cast a slur on the State police. It was done to investigate corruption in public administration, misconduct by the bureaucracy, fabrication of official records and misappropriation of public funds by an independent agency that would command public confidence. We are, therefore, of the opinion that the direction given by the High Court appears to be just and proper and calls for no real interference." 11. The contention thus raised by Mr Shah, learned senior counsel for the applicant that before entrusting the investigation to the CBI, the applicant accused should have been heard, is not sustainable. 12. We are, therefore, of the opinion that the direction given by the High Court appears to be just and proper and calls for no real interference." 11. The contention thus raised by Mr Shah, learned senior counsel for the applicant that before entrusting the investigation to the CBI, the applicant accused should have been heard, is not sustainable. 12. At the hearing, when it was pointed out to the learned counsel for the applicant/accused whether there is any provision in the Code of Criminal Procedure that during the investigation, the accused are to be heard on the point as to which agency is to conduct the investigation, he very fairly and candidly made a statement that there is no such provision. 13. Therefore, we are of the opinion that it is the prerogative of the prosecution to hand over the investigation to any agency after the registration of the case. When this court has taken cognizance of the matter in a public interest, then it was well within its competence to take away the investigation from the State Agency and hand over the same to the premier investigating agency of the country i.e. CBI when prima facie it appeared that the State Agency has not acted in a fair manner. Therefore, no right of the applicant/accused has been violated and the ground taken by the applicant that the writ petition is not maintainable fails. 14. The investigation has been completed and report under Section 173(2) of Criminal Procedure Code has been presented before the court of learned Chief Judicial Magistrate, Jammu, who after hearing the applicant/accused has found prima facie case against him. The applicant/accused has been charge-sheeted. Thus, no case is made out to recall order dt. 12th of Sept07, passed by this court. The CMP filed by the applicant/accused seeking a direction to dismiss the writ petition is found to be without merit and is dismissed. 15. The applicant has moved another CMP for release of timber seized by the Investigating agency. For that, the applicant/accused would be at liberty to move an application before the trial court and, in case, any such application is moved, the trial court shall pass appropriate orders on the same in accordance with the law. 16. 15. The applicant has moved another CMP for release of timber seized by the Investigating agency. For that, the applicant/accused would be at liberty to move an application before the trial court and, in case, any such application is moved, the trial court shall pass appropriate orders on the same in accordance with the law. 16. As noticed above, the CBI has completed the investigation, report under Section 173(2) of the Code of Criminal Procedure has been filed and the charge has been framed against the applicant/accused, therefore, no further direction is required to be passed in this writ petition which shall stand disposed of as having rendered infructuous. It is, however, made clear that the order passed by this court will not affect the merits of the case. The learned trial court is also directed to conclude the trial expeditiously preferably within a period of six months by taking the proceedings on day to day basis. In case, the trial court finds any difficulty in concluding the trial within the said period, it shall make a reference for extension of time by giving reasons. Connected CMPs shall also stand disposed of.