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2009 DIGILAW 316 (JK)

Naseer Ahmad Malik v. State Of J. &K.

2009-06-29

MUZAFFAR HUSSAIN ATTAR

body2009
1. Order dated 1st April 2009 passed by learned 1st Additional Sessions Judge Srinagar on file no. 88/N titled State vs. Wali Mohammad Sheerwani and ors is called in question by the petitioners in this petition u/s 561A CrPC. The record reveals that the case FIR no. 77/1997 was registered against the petitioners in Police Station Vigilance of Kashmir for allegedly having committed offences u/s 5 (2) Prevention of Corruption Act. The investigation conducted in the case culminated in filing of report u/s 173 CrPC before the court of competent jurisdiction. The trial court has heard the accused as also the prosecution in the matter of framing the charge or otherwise. It is submitted at bar by the learned counsel for the petitioner that the learned trial judge has already directed for framing of charge against the petitioners u/s 5 (2) of Prevention of Corruption Act. 2. The record further reveals that the allegations against the petitioners are that the petitioners were appointed in the government service allegedly by producing fake category certificates. Their services were terminated vide government order no. 16-EDU of 2003 dated 16 January 2003. The petitioners challenged the said termination order in a writ petition before this court and this court vide its order dated 2nd August 2005 quashed the termination order providing liberty to the respondents/state to conduct the enquiry into the matter. The impugned order reveals that the enquiry committee was constituted by the government which resulted in dropping the proceedings against the petitioners in terms of Government Order no. 354/EDU of 2008 dated 15th June 2008 and Government Order no. 500-EDU of 2008 dated 3rd October 2008. The Enquiry Committee arrived at a conclusion that the certificates produced by the petitioners were not fake but were genuine. 3. In view of these conclusions arrived at in the enquiry conducted by the state authorities, the petitioners filed an application before the learned trial court seeking dismissal of the case against them. The application was heard and considered by the learned trial judge and same was dismissed vide order which is impugned in this petition. 4. Heard learned counsel for the petitioner. 5. An FIR u/s 154 CPC is registered in Police Station when the complaint discloses commission of cognizable Offences. The application was heard and considered by the learned trial judge and same was dismissed vide order which is impugned in this petition. 4. Heard learned counsel for the petitioner. 5. An FIR u/s 154 CPC is registered in Police Station when the complaint discloses commission of cognizable Offences. Thereafter, in terms of the scheme of the code of criminal procedure, if the investigating officer has reason to suspect commission of the offence as alleged in the complaint then he embarks upon investigation. During the investigation, the Investigating Officer records the statements of the prosecution witness and seizes the documents necessary to prove the allegation against the accused. After the conclusion of the investigation, if the Investigating Officer is satisfied that prima facie case for trial is made out then he submits the report u/s 173 CrPC to the court of competent jurisdiction. 6. The departmental enquiry is not normally and always conducted with same precision as investigation in a criminal case is conducted. It is also not necessary that same material and evidence would be taken into consideration by the Investigating Officer and the Enquiry Committee. 7. The criminal investigation has a different purpose to achieve, viz. crime is weeded out from the society. In the criminal jurisprudence, crime is always committed against the society. That is how, the state is charged with the responsibility of prosecuting the accused. The domestic enquiry cannot be said to be substitute for criminal investigation and criminal trial. It may be at times that some areas may overlap but it is not always necessary that everything will be identical and similar in the criminal investigation and domestic enquiry. A criminal investigation in these circumstances cannot be dropped merely because in a domestic enquiry a finding is recorded in favour of the accused. The government orders are not part of the report u/s 173. These documents cannot be relied upon in this case at this stage by the trial court. The trial court is to consider the evidence and material produced before it by Investigating Agency. Disputed question of fact have been raised which cannot be looked into by this court while exercising powers u/s 501 CrPC. These documents can be pressed into service in defence by the petitioners during the trial of the case. The trial court is to consider the evidence and material produced before it by Investigating Agency. Disputed question of fact have been raised which cannot be looked into by this court while exercising powers u/s 501 CrPC. These documents can be pressed into service in defence by the petitioners during the trial of the case. The varcity of these documents on which the petitioners are relying are to be tested during the trial of the case and their evidentially value has to be assessed by the learned trial judge during the trial of the case. Powers u/s 561A CrPC are to be exercised in rarest of rare cases were continuance of the proceedings will amount to abuse of the process of court. The petitioners have failed out to make out the case. The impugned order in this petition is legal and valid. 8. Petition dismissed alongwith CMP.