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2012 DIGILAW 35 (JK)

Ghulam Rasool Vakil v. State & Ors.

2012-02-04

HASNAIN MASSODI

body2012
1. Police Station, Vigilance Organization Jammu (VOJ for short) on 21st Oct 2004 registered case FIR 03/2004 under section 5(2) Prevention of Corruption Act read with sections 419, 420, 467, 468, 471 and 120-B RPC against the petitioner, respondent no. 2 and Shri Ajit Kumar, the then Principal Secretary, Forest Department, J&K Government, after a preliminary inquiry initiated on a complaint received from Shri Mushtaq Ahmad Ganai son of Abdul Majeed Ganai resident of Rajbagh, Srinagar, on 1st. Oct 2004 revealed that there was substance in the allegations set out in the complaint. The investigation of the case was entrusted to Shri A. K. Chib, Deputy Superintendent of Police, Vigilance J&K. The investigation officer after usual investigation found that Shri Kumar had no role to play in the alleged occurrence. 2. Offence U/S 5(2) Prevention of Corruption Act was accordingly dropped. The investigation, however, revealed that the petitioner and respondent no. 2 prima facie appeared to have committed offence under sections 419,420,467,468,471 RFC read with section 120-B RFC. The investigation was accordingly concluded as proved and charge sheet presented in the court of Chief Judicial Magistrate, Jammu. 3. The case on its committal was transferred to the court of Second Additional Session Judge, Jammu. The trial court on 15th April 2010 on perusal of the charge sheet and the documents submitted therewith and after hearing the parties concluded that there was ground for presuming that the petitioner and respondent no. 2 had committed offences alleged against them in the charge sheet. Petitioner and respondent no. 2 therefore were formally charged of the offences punishable under sections 419,420,467,468,471 RFC read with section 120-B RFC. The petitioner and respondent no. 2 denied the charge making it necessary for the prosecution to adduce evidence in support the charge. However, before the trial would commence the petitioner filed instant petition under section 561-A cr. P. C. seeking quashment of the order dated 15th April 2010 of learned Second Additional Sessions Judge, Jammu and proceedings emanating therefrom. The petitioner alternatively prayed for transfer of the criminal case titled State v. Ghulam Rasool Vakil and others to a court of competent jurisdiction at Srinagar. 4. P. C. seeking quashment of the order dated 15th April 2010 of learned Second Additional Sessions Judge, Jammu and proceedings emanating therefrom. The petitioner alternatively prayed for transfer of the criminal case titled State v. Ghulam Rasool Vakil and others to a court of competent jurisdiction at Srinagar. 4. The petitioner's case is that once the investigating officer arrived at the conclusion that offence punishable under section 5(2) Prevention of Corruption Act was not made out and dropped the afore-stated offences from the list of offences alleged against the petitioner and private respondent, police station VOJ was stripped off the jurisdiction to proceed any further in the matter. It is pleaded that as P/S VOJ lost jurisdiction to present the charge sheet against the petitioner and respondent no. 2, the trial court also lacked jurisdiction to proceed with the case, frame a formal charge against the petitioner and respondent no. 2 and ask the prosecution to adduce evidence in support of the charge. The right course for the P/S VOJ, according to the petitioner, was to transfer the case to the police station competent to investigate the offences alleged and found to have been prima facie committed by the petitioner and respondent no. 2. It is further pleaded that the transaction between the complainant and the petitioner was of pure civil nature and the material collected in the investigation did not indicate commission of offence of cheating or forgery as alleged in the charge sheet. The petitioner and respondent no. 2, it is contended cannot be held to have cheated the bank only because they opened an account with the bank. The alternative relief of transfer of the case from the court of Second Additional Sessions Judge, Jammu to a court of competent jurisdiction AT SRINAGAR is based on the grounds that both the accused i.e. the petitioner and respondent no. 2 are permanently residing at Srinagar, the alleged bank account has been opened in Air Cargo Branch of J&K Bank AT SRINAGAR and that five of the 22 witnesses listed in the charge sheet hail from Srinagar. The remaining witnesses according to the petitioner are officers/officials of the Vigilance Organization and would not face any difficulty in crossing the witness box in a court of Srinagar. 5. Heard and considered. 6. The remaining witnesses according to the petitioner are officers/officials of the Vigilance Organization and would not face any difficulty in crossing the witness box in a court of Srinagar. 5. Heard and considered. 6. It is well settled law that material collected during the investigation and the conclusions objectively drawn on perusal of such material cannot be disregarded and the endeavour made by the investigating officer in collecting such material allowed to go waste only because the investigation officer lacked jurisdiction to investigate the matter. The emphasis is not to be on the competence of the investigating officer but the material dug out during the investigation. The afore-stated proposition is based on the role of an investigating officer. It is pertinent to point out that the investigating officer is saddled with the duty to unravel the truth, and the facts unraveled cannot be belied and disregarded only because the investigating officer was not competent to investigate the particular offence though empowered to investigate all other offences. The principle of law finds expression in authoritative pronouncements of Apex Court in H.N. Rishbudh and another v. State of Delhi, AIR 1955 S. C. 196 and has ever since been followed whenever such controversy has arisen including in Ambika Prasad and another v. State (2000) 2 SCC 646 , State of MP and others v. Ram Singh (2000) 5 SCC 88 , Habibullah Bhat (Trali) v. State of J&K 2001 SLJ 168 : 2003 (3) JKJ HC-45, State of J&K and others v. Abdul Rashid Zargar 2009 (1) SLJ 210 : 2009 (Supp.) JKJ HC-139, Dr. Ghulam Hassan Khan v. State of J&K and others 2011 (3) JKJ (HC) 19. 7. In the present case what must not escape our attention is that the case was initially registered under section 5(2) Prevention of Corruption Act — an offence that admittedly fell within jurisdiction of police station VOJ. On investigation the material collected was found not to point to commission of said offence. It is only thereafter that the charge sheet was presented before the CJM Jammu and committed to Second Additional Sessions Judge, Jammu. On investigation the material collected was found not to point to commission of said offence. It is only thereafter that the charge sheet was presented before the CJM Jammu and committed to Second Additional Sessions Judge, Jammu. The P/S VOJ therefore had initial jurisdiction to investigate the matter and merely because after the investigation was concluded and the commission of offence punishable under section 5(2) Prevention of Corruption Act found not to have established, though conclusions pointed to commission of other offences, the prosecution case cannot be thrown out on the ground of defective investigation. Needless to mention that the defect, if any, in the investigation has not in any manner resulted in miscarriage of justice. There is thus no merit in petitioner's case that the trial court order dated 15th April 2010 whereby the petitioner and respondent no. 2 have been formally charged of the offence alleged against them amounts to abuse of process of court or is liable to be set aside to score ends of justice. There is also no merit in the petitioner's case for withdrawal of criminal case titled State v. Ghualm Rasool Vakil and others from the files of Second Additional Sessions Judge, Jammu and its transfer to the court of competent jurisdiction at Srinagar. The case stands registered at P/S VOJ and alleged transaction involving offence punishable under sections 419, 420, 467, 468, 471 RPC read with section 120-B RPC, taken place at Jammu. It is admitted case of the petitioner that 17 of the 22 witnesses belong to Jammu. In the said background it would not be in the interest of justice to order transfer of the case from the court of Second Additional Sessions Judge, Jammu to a court AT SRINAGAR as such a course is likely to make it difficult for the prosecution witness to travel all the way from Jammu to a court AT SRINAGAR to cross the witness box and get their evidence recorded and resultantly hamper and delay the trial. For the reasons discussed above, the petition is dismissed.