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2009 DIGILAW 611 (JK)

Mohd. Shafi Dar v. State

2009-12-07

MUZAFFAR HUSSAIN ATTAR

body2009
1. Corruption, deserves to be detested and despised in all its forms and characteristics, being as abominable as Satan. The corruption has potential of up-setting the economy of State. By indulging in corrupt practice a handful of people subject large section of population to untold miseries. 2. William Shakespeare has said, "No legacy is as rich as Honesty." 3. Case FIR No. 35/05 under section 5(2) J&K PC Act. 2006, (for short Act of 2006) read with Section 120-B, 419,420468 and 471 RPC was registered with Police Station Vigilance Organization Kashmir, in view of the Public Interest Litigation filed about the commission of the alleged offences by the petitioners and respondents 4 and 5. It was alleged that a huge chunk of land which was available at Rs.1.87 lacs was purchased at exorbitant rate of Rs.4.00 lacs. It was also alleged that the accused persons named in the FIR hatched a criminal conspiracy to cause wrongful loss to the J&K Cooperative Housing Corporation and wrongful gain to themselves. It is also alleged that a fictitious account under No. 949/16 was opened in Cooperative Bank Chanapora in the name of Mohammad Yousuf Dar for withdrawing an amount of Rs.50.00 lacs. The account was opened by Sh. Mohd Ayoub Reshi, Jr. Assistant of the Cooperative Department, who was introduced as Mohammad Yousuf Dar by accused Mohammad Shafi Dar. It is also alleged that impersonation was done for facilitating of encashment of cheques by the officials of the Corporation themselves. 4. After conclusion of the investigation report under section 173 Cr.P.C was filed before the Court of Special Judge Anti-Corruption Kashmir, Srinagar. The arguments were addressed by prosecution and the learned counsel for the accused before the trial court. The prosecution referred to the allegations levelled against the accused persons and relied on material/evidence collected during the investigation and prayed for framing of charge against the accused persons so that they are put on trial. 5. The argument was raised on behalf of the accused persons that in view of the material brought on record, no offence is made out against the accused persons. It was also argued that accused being employees of the Cooperative Society, are not public servants and so could have not been send-up for trial under the provisions of the Act of 2006. 6. It was also argued that accused being employees of the Cooperative Society, are not public servants and so could have not been send-up for trial under the provisions of the Act of 2006. 6. The learned trial Judge after hearing the arguments, considered the record and ordered for framing of charge against the petitioners and respondent No.4, and ordered discharge of respondent No.5. The trial court ordered framing of charge against the accused persons which include petitioners as well u/s 5 (1) (c) (d) of Act of 2006 read with Sections 120-B, 419,420,468 and 471 RPC. 7. This petition under section 561-A Cr.P.C is filed calling in question the order dated 18th May 2009 passed by ld. trial Judge, interalia on the ground that no offence is made out against the petitioners and that petitioners being not public servants, as being employees of the cooperative department/society they deserve to be discharged. 8. Proceedings in a criminal case can be ordered to be quashed by invoking power u/s 561-A Cr.P.C in rarest of rare cases. The Honble Supreme Court has in plethora of judgments ruled that this power is to be exercised with great caution, care and circumspection. 9. The trial court in terms of Criminal Law Amendment Act has to follow the procedure for conducting of trial which procedure is being followed by magistrates in the trial of the warrant cases. Section 251-A CrPC Svt. 1989,(for short Act of 1989) provides that if upon consideration of all the documents referred to in Section 173 Cr.P.C and after making examination, if any of the accused, as the magistrate thinks necessary, and after giving prosecution and accused an opportunity of being heard, the magistrate considers the charge against the accused to be groundless, he shall discharge him; and if upon consideration of material magistrate is of the opinion there is ground for presuming that the accused has committed an offence he is under statutory obligation to frame in writing a charge against the accused. 10. On the plain reading of the provisions of law, it becomes clear that the accused can be discharged of an offence only if it is found that charge levelled against him is groundless. When charge can be said to be groundless in law, begets an answer. The groundless charge would be that charge which is not supported even by a shred of evidence or material. When charge can be said to be groundless in law, begets an answer. The groundless charge would be that charge which is not supported even by a shred of evidence or material. The ground for presuming that offence has been committed would mean that there is prima facie material/ evidence available on record which requires the accused to be put on trial. 11. At the time of considering material/evidence to find out as to whether the charge is made out or not, the trial court has not to delve deep into the material/evidence and has not to scan the said material as if the trial court has to record a finding about the innocence and/or guilt of the accused. At the time of framing of the charge material/evidence which suggest commission of an offence is sufficient for the ld Judge to put the accused on trial by ordering framing of charge against him. The allegations made in report 173 Cr.P.C coupled with the evidence/material placed on record, has been briefly summarized in this order. The order passed by the ld. trial court for ordering framing of charge against the petitioners is well founded and it does not call for any interference, as primafacie alleged offences have been committed by petitioners and respondent No.4. 12. The ld. counsel for the petitioners argued that the petitioners are not public servants as they are employees of cooperative society. A complete answer is found in clause Fourteenth of Section 21 of the Act of 1989, which is reproduced as under:- "Public Servant. The words "public servant" denote a person falling under any of the descriptions hereinafter following namely:- ............................ Fourteenth- Every officer or servant employed by a Municipal Committee, Town Area Committee, Notified Area Committee, Panchayat, Co-operative Society or Co-operative Bank whether for the whole or part of his time, and every member of such committee, society or bank;" 13. Section 2 of the Act of 2006, provides that for the purposes of this Act the expression "Public Servant" means Public servant as is defined in Section 21 of the State Ranbir Penal Code. On conjoint reading of Section 2 of the Act of 2006, read with Section 21 clause Fourteenth of the Act of 1989, the argument of ld. counsel for petitioners that petitioners are not public servants falls to ground lock, stock and barrel. On conjoint reading of Section 2 of the Act of 2006, read with Section 21 clause Fourteenth of the Act of 1989, the argument of ld. counsel for petitioners that petitioners are not public servants falls to ground lock, stock and barrel. The order impugned in this petition, accordingly, does not call for any interference. 14. This petition is, accordingly, dismissed. Ld. trial Judge is requested to proceed with the trial of the case with promptitude. Delay caused in trial is neither in the interest of society nor in the interest of accused. Petition dismissed.