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2012 DIGILAW 34 (JK)

Ausia Gul v. State & Ors.

2012-02-04

HASNAIN MASSODI

body2012
1. The petitioner after passing her Higher Secondary (10+2) examination succeeded in getting admission to MBBS Course, Session 1993 in Government Medical College, Srinagar under "Other Social Caste" category on the strength of other Social Caste (OSC) Certificate issued in her favour by Shri Ghulam Hyder Mir the then Tehsildar, Pulwama on the recommendation of Shri Siraj-Uddin Shah Naib Tehsildar of the area. Shri Ghulam Hassan Resident of Rawalpora, Srinagar on 12.10.1994 lodged a written complaint with the Commissioner, Jammu and Kashmir Vigilance Organisation alleging therein that Ms. Ausia Gul was not a member of other Social Caste category and had fraudulently in connivance with Tehsildar and Naib Tehsildar, Pulwama obtained other Social Caste (OSC) certificate and managed to get admission in MBBS Course by pressing into service certificate so obtained. The receipt of the complaint prompted Commissioner, Vigilance Organisation to order preliminary inquiry. The inquiry substantiated the complaint and lead to registration of case FIR 26 of 1996 under Section 5(2) Prevention of Corruption 2006 read with 120-b RPC Police Station, VOK. The investigation was concluded as proved against the petitioner and his co-accused, the Charge-sheet presented in the Court of Special Judge Anti-Corruption Srinagar. The investigation revealed that the petitioner — Ausia Gul, was certified to belong to other Social Caste category and Other Social Caste (OSC) certificate was issued in her favour on the ground that she was daughter of a Grahati (miller running a water mill or Grahat), though the facts were otherwise. The petitioner — Ausia Gul was found to be daughter of Shri Ghulam Mohamad Kaloo an officer (Secretary) of Srinagar Municipality drawing a salary of Rs. 8,000/- per month. The investigation revealed that Nabla Banoo mother of Ausia Gul was a teacher in Education Department of the State Government and drawing a monthly salary of Rs. 4,000/- per month. The revenue officials allegedly built up a case in favour of petitioner Ausia Gul on the ground that her maternal grand-father was a Grahati as her father had gone as Khanadamad, he was to be taken as a Grahati and the petitioner — Ausia Gul was thus entitled to get Other Social Caste certificate notwithstanding the fact that her parents were Government officers/officials drawing a handsome salary. The investigation however, belied this aspect of the case as it was found that father-in-law of the petitioner's father (her maternal grand-father) namely Shri Sona-Ullah Magray was a retired Deputy Commissioner and not a Grahati as projected by the revenue officers. The investigation further revealed that no Grahat/water mill existed in the village Nowpora since 1981 and that Ghulam Mohamad Kaloo — father of the petitioner Ausia Gul was not as per the revenue record registered as a resident of village in as much as his name did not figure in the Choola Register of the village. 2. Learned Special Judge Anti Corruption on going through the Charge-sheet and upon hearing the Chief Prosecuting Officer, and the accused and their counsel found sufficient grounds to reveal commission of offence under Section 5(1) (d) read with Section 5(2) Prevention of Corruption Act, and Section 120-b RPC by the petitioner and her alleged co-conspirators and formally charged them of the aforesaid offence. 3. The petitioner seeks quashment of the order dated 18th May 2009 in exercise of inherent powers under Section 561-A Cr.P.C. primarily on the ground that as the Deputy Commissioner, Pulwama on inquiry pursuant to order dated 07.04.1997 in OWP No. 310/1994 up held the Other Social Caste (OSC) certificate issued by Tehsildar, Pulwama (Ghulam Hyder Mir) in favour of Ausia Gul, there was no reason for leaned Special Judge Anti-Corruption Srinagar, Kashmir to hold the petitioner and other accused to have prima-facie committed offences punishable under Section 5(2) Prevention of Corruption Act, Svt. 2006 Read with 120-B RFC and commence the trial. The trial Court is said to have erroneously assumed that the views of Divisional Commissioner were not available to the High Court while disposing of, the writ petition filed by the petitioner. It is pointed out that the Divisional Commissioner, Kashmir himself filed an application in SWP No. 310/1994 detailing his opinion that the Tehsildar Pulwama had wrongly granted certificate in favour of petitioner and that the conclusion arrived at by the Deputy Commissioner Pulwama up-holding OSC certificate were not to be accepted. It is urged that the writ court had before it the application filed by Divisional Commissioner Kashmir dated 13th September 1997 insisting that the conclusions drawn by the Deputy Commissioner were erroneous disposed of, the writ petition holding that the petitioner was entitled to continue her studies. It is urged that the writ court had before it the application filed by Divisional Commissioner Kashmir dated 13th September 1997 insisting that the conclusions drawn by the Deputy Commissioner were erroneous disposed of, the writ petition holding that the petitioner was entitled to continue her studies. It is insisted that against the above backdrop the criminal proceedings against the petitioner amounted to abuse of process of the Court and were liable to be quashed. 4. I have gone through the petition and material available on the file. I have heard learned counsel for the parties. 5. It is pertinent to point out that the High Court vide order dated 17.07.1997 in SWP No. 310/1994 titled Ausia Gul v. State directed the Divisional Commissioner Kashmir to examine the genuineness of OSC certificate issued in favour of the petitioner—Ausia Gul by conducting appropriate inquiry or cause such inquiry to be conducted by Deputy Commissioner, Pulwama in accordance with the relevant rules, after affording petitioner—Ausia Gul an opportunity of being heard and adducing any evidence to support her claim. The Divisional Commissioner, in the event inquiry was not concluded within the fixed time frame was required to submit an interim report to indicate the progress made and the circumstances due to which final report was not submitted within the prescribed time limit. 6. The Divisional Commissioner, Kashmir instead of himself inquiring into the matter entrusted the inquiry to Deputy Commissioner, Pulwama. The Deputy Commissioner, Pulwama as already stated vide his report dated 09.09.1997 styled as order up holding the other Social Caste (OSC) certificate issued by Tehsildar Pulwama in favour of petitioner — Ausia Gul and vide his No. DCP/V/A-2/97/434 dated 09.09.1997 forwarded its copy to Divisional Commissioner. The Divisional Commissioner on going through the report/order of the Deputy Commissioner, Pulwama dated 09.09.1997 got it examined by a Committee comprising of Divisional Commissioner himself, Additional Commissioner, Kashmir and Assistant Commissioner Central. The Committee did not record agreement with the conclusions drawn by Deputy Commissioner, Pulwama. The Committee noted that the income of petitioner — Ausia Gul's father — a Government Officer admittedly exceeded permissible limit of Rs. 1.00 lakh per anum and further more he was not dependant on the profession of Grahati. The Committee did not record agreement with the conclusions drawn by Deputy Commissioner, Pulwama. The Committee noted that the income of petitioner — Ausia Gul's father — a Government Officer admittedly exceeded permissible limit of Rs. 1.00 lakh per anum and further more he was not dependant on the profession of Grahati. The Divisional Commissioner, Kashmir and other two officers accordingly did not approve the conclusions arrived at by Deputy Commissioner Pulwama, upholding OSC certificate issued by Tehsildar Pulwama, in favour of petitioner Ausia Gul. Shri S. L. Bhat the then Divisional Commissioner, took pains to file an application on 13.09.1997 duly supported by his personal affidavit by stating therein that he and other two officers associated by him in examining the report/order dated 09.09.1997 of Deputy Commissioner Pulwama did not agree with the conclusions drawn by the Deputy Commissioner and his upholding OSC certificate in favour of the petitioner Asia Gul on the grounds detailed in the application. 7. However, the application filed by Sh. S.L.Bhat the then Divisional Commissioner dated 13th September 1997 and his personal affidavit appears to have gone unnoticed and has not been dealt with by the writ court in its order dated 18th February 2000, whereby SWP No. 310/1994 titled Ausia Gul v. State and the matter held to have been examined by the authority supposed to deal with the matter in terms of SRO 126. It is pertinent to note that the Hon'ble High Court vide order dated 17.07.1997 asked the Divisional Commissioner, to inquire into the matter and gave him liberty to entrust the inquiry to the Deputy Commissioner, Pulwama. In the circumstances even though the Divisional Commissioner because of his other administrative engagements or any other reason asked the Deputy Commissioner Pulwama to inquire into the matter, the Divisional Commissioner did not loose control over the matter and was within his powers to examine the report submitted by the Deputy Commissioner and see for himself whether the conclusions drawn were based on the material collected and were inconformity otherwise with rules. The Divisional Commissioner, while entrusting the inquiry retained the power to go through the inquiry report to see whether the findings recorded by the Divisional Commissioner were erroneous and not sustainable on the law and facts. 8. The Divisional Commissioner, while entrusting the inquiry retained the power to go through the inquiry report to see whether the findings recorded by the Divisional Commissioner were erroneous and not sustainable on the law and facts. 8. So viewed, the Divisional Commissioner can not be faulted for his having constituted a Committee to examine the Deputy Commissioner's report dated 09.09.1997 and disagree with the conclusions drawn for the reasons recorded. There is substance in the view taken by Special Jude Anti-Corruption that the decision taken by the Divisional Commissioner, in the matter was not brought to the notice of High Court by learned counsel though Shri Bhat had taken pains to detail it in his application dated 13th September 1997. The writ court order dated 18th February 2000 in the circumstances can not nullify the decision taken by the Divisional -Commissioner and Additional Commissioner Kashmir and Assistant Commissioner Central on examination of the Deputy Commissioner's report dated 09.09.1997. Viewed thus learned Special Judge Anti-Corruption was right in concluding that the material collected during investigation prima-facie revealed commission of offences punishable under Section 5(2) Prevention of Corruption 2006 read with 120-b, read with 120-b RFC and formally charged the petitioner and other accused of the said offences. 9. In the circumstances for the reasons discussed the petitioner has failed to make out a case for exercise of inherent powers under Section 561-A Cr.P.C. and quashment of the order of Special Judge Anti-Corruption dated 18th May 2009 and the proceedings emanating there from. The petition is accordingly dismissed. The alleged occurrence has taken place way back in the year 1993 and pendency of the present petition has delayed the trial by two years. Learned Special Judge Anti-Corruption in the circumstances shall exercise all powers available under Code of Criminal Procedure to ensure that the trial is taken to its logical end with reasonable despatch, and as far as possible take up the case at least once in two weeks and conclude the trial within six months from the date of this order. Dismissed.