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2010 DIGILAW 191 (JK)

Gh. Hassan Raina v. State Of J&K

2010-04-08

Hasnain Massodi

body2010
1. Inherent powers vested in this Court under Section 561-A are being invoked to seek quashment of criminal proceeding pending against the petitioner in the Court of Special Judge Anti-corruption, Srinagar. The petition has been filed against the following factual backdrop. 2. Shri Imran Nazir S/o Nazir Ahmad-respondent No. 5 herein, obtained admission to MBBS course in Government Medical College, Srinagar for the academic sessions 1994-95 on the strength of a reserved backward area certificate (RBA, for short) granted/issued in his favour by the respondent No.2 the then Tehsildar, Pulwama. It later surfaced that the RBA certificate issued in favour of respondent No. 5 was allegedly a piece of fraud, issued in violation of the rules and regulations. The matter attracted the attention of the Police Station, VOK where, after preliminary enquiry a case FIR No. 17/1998 was registered. The investigation allegedly revealed that the respondent No. 5-beneficiary of alleged fraud, was actually a permanent resident of Village Pinglena Tehsil Pulwama and a neighbor of Shri Mohammad Akbar Hajam, the then Deputy Commissioner, Pulwama and was fraudulently shown to have been the resident of village Bamnoo Ichgoza- a reserved backward area under the relevant notification. The investigation further revealed that the petitioner and the respondents 2 to 5 hatched a criminal conspiracy to confer undue benefit on the respondent No.5 and in furtherance of the said criminal conspiracy manufactured/fabricated a false State subject certificate in favour of respondent No.5 showing the respondent No.5 to be a permanent resident of village Bamnoo Ichgoza. The issuance of State subject certificate is said to have been followed by issuance of a RBA certificate on the strength of which the respondent No.5 succeeded in getting admission in Government College, Srinagar. The petitioner as Patwari Halqa Ichgoza was allegedly found to have played a key role in the criminal conspiracy and its execution. The results of investigation prompted Police Station, VOK to file a charge sheet alleging commission of offence punishable under Section 5(2) Prevention of corruption Act, 2006 read with Section 201, 120-B, 468 RPC against the petitioner and his co-conspirators including respondent No.5 beneficiary of the conspiracy. The charge sheet though presented on 8.2.2007 has yet to cross the take off stage mainly because the record has been summoned and retained by this Court. 3. The charge sheet though presented on 8.2.2007 has yet to cross the take off stage mainly because the record has been summoned and retained by this Court. 3. The petitioner seeks quashment of the criminal proceedings on the ground that after the alleged fraud surfaced, the admission of respondent No.5 in MBBS course was cancelled vide order dated 16th of January, 2001 and that the respondent No.5 aggrieved of the said order filed a writ petition (OWP No. 19/2001) before this Court and the Writ Court was pleased to quash the order dated 16th of January, 2001 and allowed the respondent No.5 to complete his MBBS course. It is pleaded that in wake of the order of the Writ Court passed in the aforesaid writ petition, the criminal proceedings against the petitioner and all other accused are rendered inconsequential and liable to be quashed. The petitioner has set-out in detail the facts that must persuade this Court to arrive at the conclusion that the results of investigation are without any basis and bereft of any merit. Heard and considered. 4. The weft and warp of the petitioners case before this Court is that this Court having vide order dated 27.05.2003 set aside the order dated 16th of January, 2001 whereby admission of respondent No.5 was cancelled and further allowed the respondent No.5 to proceed with MBBS course, has virtually sealed the fate of criminal prosecution pending against the petitioner. It is argued by learned counsel for the petitioner that after final disposal of OWP No. 19/2001 nothing remains in the case and the criminal proceedings emanating from the initial accusation amount to abuse of process of Court. 5. The arguments regarding genuiness of the RBA certificate in question being essentially factual in character, fall outside the domain of this Court. 6. It needs no emphasis that the investigating agency after investigating the matter has, on the strength of the material collected during investigation and after recording evidence and procuring expert evidence, found the present petitioner and his alleged co-conspirators to have hatched criminal conspiracy and in execution thereof committed the offences alleged in the charge sheet. This Court while deciding OWP No.19/2001 did not touch the factual aspect of the matter nor was such an exercise expected from this Court. This Court while deciding OWP No.19/2001 did not touch the factual aspect of the matter nor was such an exercise expected from this Court. What weighed with the Writ Court while setting aside order dated 16th of January, 2001 and allowing the respondent No.5 to proceed with the MBBS course, was that after the alleged fraud surfaced, the respondents had not proceeded to follow the procedure envisaged under SRO 126 for cancellation of RBA certificate alleged to have been fraudulently issued in favour of respondent No.5. The writ Court after making detailed overview of the Jammu & Kashmir Reservation Rules, 1994 (SRO 126) observed that in terms of SRO 126 any person aggrieved by an order of the Authorized Officer including one issuing a certificate has an option to prefer an appeal within 90 days from the date of the order of the Deputy Commissioner and to the Divisional Commissioner in the event the initial order is made by the Deputy Commissioner. The Writ Court was of the opinion that even an order granting a certificate under Rule 30 of SRO 126 can be assailed through the medium of an appeal before the Appellate Authority. The Appellate Authority, it was pointed out, has jurisdiction to set aside a certificate granted under Rule 30 if the certificate is found to have been granted in contravention of the rules. 7. In terms of Rule 36 of SRO 126, it was pointed out, any person who obtained certificate by misrepresentation, fraud or concealment of any material was liable to penalty laid down therein including forfeiture of benefit that was extended to the certificate holder because of the certificate so issued in his favour. Learned Writ Court found that the reply filed in the writ petition by the respondents did not indicate that the order granting certificate to the respondent No. 5 herein, in terms of Rule 30 was even appealed against or the RBA certificate was set aside by the Appellate Authority. In presence of RBA certificate granted in favour of the respondents having remained un-assailed, in the opinion of the Writ Court, the respondents were not justified in cancelling the admission of respondent No.5 to MBBS course in Government Medical College, Srinagar. In presence of RBA certificate granted in favour of the respondents having remained un-assailed, in the opinion of the Writ Court, the respondents were not justified in cancelling the admission of respondent No.5 to MBBS course in Government Medical College, Srinagar. The investigation by the Vigilance Organization was found to be no substitute for the procedure laid down in Rules 30 to 36 of SRO 126, more so when the material on the file did not indicate that the respondent No. 5 was associated with the investigation. 8. In the circumstances, the Writ Court while deciding OWP No.19/2001 did not express any opinion which can be said to have cast a doubt on the prosecution case before the trial court or otherwise closed the matter so as to persuade this Court to quash the criminal proceedings pending against the petitioner. Whether the admission of respondent No.5 was cancelled vide order dated 16th of January, 2001 in accordance with the procedure laid down under SRO 126 is a question foreign to the prosecution case awaiting-disposal before the trial court against the petitioner and his alleged co-conspirators. 9. It needs no emphasis that inherent power under Section 561-A Cr.P.C is an extraordinary power and has to be exercised rarely and with circumspection. Section 561-A Cr. P.C envisages three circumstances under which inherent jurisdiction may be exercised. The court is to exercise inherent powers (1) to give effect to an order under code, (2) to prevent abuse of the process of court, and (3) to otherwise secure ends of justice. Inherent jurisdiction under Section 561-A vested in the Court is wide and because of its plentitude it is to be exercised soaringly, carefully and with caution. It has been held that the authority of the court exists advancement of justice and if any order/proceedings are bound to abuse the authority so as to produce injustice, the court has power to prevent abuse. The court is to exercise inherent powers where initiation or continuance of any proceedings results in injustice and the quashing of the proceedings would serve the ends of justice. The court is to exercise inherent powers where initiation or continuance of any proceedings results in injustice and the quashing of the proceedings would serve the ends of justice. The scope of inherent powers was dealt with, and the cases, where High Court may exercise its inherent powers relating to cognizable offences to prevent abuse of process of court and otherwise secure the ends of just, were categorized in State of Haryana v. Bhajan Lal, AIR 1992 SC 602 , as under: - "102: -- (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, Justifying an investigation by Police Officer under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S. 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can even reach a Just conclusion that there is sufficient ground to proceeding against the accused. (6) Where there is an express legal bar en-grafted in any of the provisions of the Code or the Act concerned (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with the mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 10. (7) Where a criminal proceeding is manifestly attended with the mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 10. The present case does not fall within any of the categories laid down in the above reported case (Bajan Lal’s case). No ground is made out to exercise inherent power under Section 561-A Cr. P.C. Resultantly petition fails and is hereby dismissed. 11. The trial has seen no progress worth the name during last about three years. The respondent No.5 beneficiary of the alleged fraud, arrayed as accused No.6, has not even bothered to appear before the trial court and very conveniently proceedings under Section 512 Cr. P.C have been initiated against the respondent No.5 (accused No. 6). It hardly needs any emphasis that the trial in presence of the accused is the general rule and proceeding in a criminal trial at the back of the accused is only an exception. The trial court is expected to realize that even where the evidence is recorded against an accused during trial in absence of the accused, no final judgment/order can be passed unless the accused is brought before the Court. Section 512 Cr. P.C is intended only to provide a procedural tool to the trial court to save the evidences that has to come before it from getting obliterated or conversely to preserve the evidence. The proceedings under Section 512 Cr. P.C are thus not to be initiated as a matter of courtesy on mere asking of the prosecution or as a matter of courtesy extended to the prosecution. The learned trial judge shall take all necessary steps to ensure that the warrant or arrest issued against the respondent No. 5 (accused No.6 before the trial court) is executed and may even require any responsible officer including one who heads the Police Department at the provincial level to execute the warrant so that the trial proceeds smoothly and without any hiccup. The petitioner through his counsel is directed to appear before the trial court on 15.04.2010. Record be sent down forthwith.