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2009 DIGILAW 531 (JK)

Javeed Ahmad Najar v. State Of J. &K.

2009-11-04

J.P.SINGH

body2009
1. Petitioner has filed this petition seeking quashing of learned Additional Sessions Judge, Baramullas order of September 05, 2007, finding a prima facie case for commission of offences punishable under sections 420, 467 and 471 RPC to have been made out against him for his trial. 2. Referring to the communications of the Director, Technical Education, Jammu and Kashmir, Srinagar and other functionaries of the Industrial Training Institute, Baramulla, besides the orders passed by this Court in Contempt Petition COA No. 289/ 95, the petitioners learned Counsel urged that the prosecution against the petitioner was the result of inter-se rivalry of the functionaries of the Industrial Training Institute, Baramulla and in view of the engagement of the petitioner by the said functionaries, in compliance to the orders passed by this Court, the continuance of Criminal proceedings against him, on the allegations that he had fabricated and produced fake orders for his appointment as Instructor-Stenography, Industrial Training Institute, Baramulla, was an abuse of the process of Court. 3. Delayed filing of the Final Police Report, and long pendency of the trial against the petitioner, too has been projected to seek quashing of the proceedings pending before the learned Additional Sessions Judge, Baramulla. 4. Per-contra, the learned State Counsel submitted that the petitioner, who himself was responsible for delaying the trial of the case, cannot take advantage of his own wrong to project the plea of infraction of the provisions of Article 21 of the Constitution of India, which according to him was not attracted in the case. Learned counsel submitted that the allegations against the petitioner being grave; the public interest, may not warrant quashing of the proceedings. 5. I have considered the submissions of the learned counsel for the parties and perused the trial Court records as also the records of the petitioners Writ Petition SWP No. 287/ 2000. 6. Learned counsel submitted that the allegations against the petitioner being grave; the public interest, may not warrant quashing of the proceedings. 5. I have considered the submissions of the learned counsel for the parties and perused the trial Court records as also the records of the petitioners Writ Petition SWP No. 287/ 2000. 6. Perusal of the records of the trial Court indicates that the First Information Report was lodged against the petitioner by the Director, Technical Education, Srinagar in the year 1996, in which it was alleged that the petitioner had fabricated appointment Order No. 193 dated 17-4-1996, indicating him to have been appointed as Junior Grade Instructor Stenography in the pay scale of Rs 1200-2040, and the preliminary inquiry had revealed that neither was the order signed by any official/ officer of the Directorate, nor had the order number/ date any relevance with the office records. 7. Pursuant to the registration of FIR No. 221/ 1996 at Police Station, Baramulla, on Director, Technical Educations report aforementioned, and the investigation carried thereon, a Final Police Report was laid with the Judicial Magistrate, Ist Class, Baramulla, who, finding the offences triable by the Court of Sessions, committed it on March 06, 1998. 8. Since 1998 until September 05, 2007 no progress could be achieved in the case because of the continued absence of the petitioner from the proceedings. 9. Petitioners plea that delayed filing of the Police Challan against him amounts to abuse of the process of law, is found to be factually incorrect and legally un-sustainable, in that, the investigation into the FIR lodged against the petitioner in August, 1996, has been completed by the police within a period of one year and about two months, which period, cannot by any standards be said to be unduly long so as to attract the provisions of Article 21 of the Constitution of India. 10. Petitioners counsels next plea that the delayed trial of the petitioner had violated his fundamental Right to Life and Personal Liberty, too is found untenable, on facts, in that, the delay in petitioners trial has occasioned not because of any default of the prosecution but because of the continued absence of the petitioner during the proceedings in the Court from 1998 to 2007. Being himself responsible for absenting from the proceedings in the Court, the petitioner cannot thus, be heard to project the violation of Article 21 of the Constitution of India. 11. Petitioners Counsels further submission that the prosecution against the petitioner was the result of rivalry between the functionaries of the Industrial Training Institute, Baramulla, too is found un-tenable, in view of the investigation conducted in the case, which has found him to have forged his appointment order and knowingly used it as genuine to secure the Government employment. 12. Afore-mentioned plea of the petitioner, is even otherwise in the nature of his defence, which cannot be gone into by this Court at this stage, in exercise of jurisdiction under section 561-A Cr P.C. 13. Petitioners next plea that the State functionaries having accepted him in the State employment, after implementing the orders passed by this Court, the continuance of Criminal proceedings against him, on the allegations that he had forged his appointment order and used it to secure appointment in the Government Service, too is un-sustainable, in that, this Court has not recorded any finding on facts, either in the petitioners writ petition or in any other proceedings, holding that the petitioners appointment was genuine and not based on any fake order, or that he had not forged his appointment order. On the other hand, the records of petitioners Writ Petition indicate that the petitioner had filed Writ Petition SWP No. 1034/ 1995 in this Court, which was however, disposed of on 9-12-1998, without recording any finding on facts, as to the genuineness of petitioners appointment order, issuing a direction to the State respondents to accord consideration to the petitioners case under rules and relevant policy. 14. Complying with the direction issued on petitioners Writ Petition SWP No. 1034/ 1995, the Director, Technical Education accordingly considered the petitioners case, and taking into consideration various factors, including the registration of FIR No. 221/ 1996 against the petitioner, rejected his case for appointment on substantive basis in the Technical Education Department. Petitioner there-after appears to have filed another Writ Petition SWP No. 287/ 2000 seeking a Writ of Mandamus against the respondents to permit him to work till proper selection was made. Petitioner there-after appears to have filed another Writ Petition SWP No. 287/ 2000 seeking a Writ of Mandamus against the respondents to permit him to work till proper selection was made. Although an interim order was passed on this Writ Petition on 16-3-2000 that the petitioner would not be ousted till next date of hearing, in case he was in position, but the interim order does not appear to have been continued later. This Writ petition is still pending consideration. 15. Factual matrix of the petitioners litigation in this Court, therefore, indicates that this Court has not recorded any finding or otherwise opined, on the allegations appearing against the petitioner in the Final Police Report, on which the petitioner is facing trial before the learned Additional Sessions Judge, Baramulla. 16. In these circumstances, when the allegations appearing against the petitioner in the Final Police Report, are neither the subject matter of dispute, before this Court nor has this Court recorded any finding or opinion thereon, the continuance of Criminal proceedings against the petitioner, on the basis of the Final Police Report, cannot be said to be an abuse of the process of Criminal Court. 17. For all what has been said above, I do not find any case to have been made out by the petitioner, justifying exercise of jurisdiction under section 561-A Cr.P.C to truncate the criminal proceedings, which the petitioner has otherwise, succeeded in stalling for more than 10 years. 18. Thus, found to be without merit, this petition is accordingly, dismissed. However, keeping in view the delay which has occasioned in the petitioners trial, though because of his own default, certain directions are required to be issued, in the interest of justice, to ensure speedy disposal of the case pending against the petitioner. 19. Learned Additional Sessions Judge, Baramulla is accordingly directed to take up the petitioners case for trial, every fortnight to complete the trial, preferably within a period of one year. 20. Petitioner is accordingly directed to appear before the learned Additional Sessions Judge, Baramulla on December 01, 2009. 21. A copy of this order be supplied to the State Counsel to ensure that the prosecution witnesses appear on the dates so fixed for the purpose by the trial Court.