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2013 DIGILAW 449 (JK)

Bashir Ahmad Sheikh v. State

2013-08-07

Mansoor Ahmad Mir

body2013
1. Petitioner, by the medium of present petition, seeks relief in the nature of writ of certiorari for quashing the sanction granted for prosecuting the petitioner under and in terms of Section 5(1) (e) read with 5(2) of J&K Prevention of Corruption Act, Svt. 2006, vide Govt. Order No. 74-GAD(vig) of 2010 dated 15th December, 2010. Quashment of FIR No. 36/2007 of Police Station Vigilance Organization Kashmir, for short, VOK, charge sheet/ police report prepared by VOK consequent to said FIR is also sought for. 2. Petitioner has also sought writ of mandamus to the extent that respondents be restrained from exercising power under Rule 31 of Civil Service (Classification Control and Appeal) Rules, for short CCA Rules. 3. Little narration of the events would be appropriate, thus: 4. Petitioner avers to be a Veterinary Assistant Surgeon, Grade-l Carcase Utilization Office, Shalteng. He along with his wife are putting up at Budshah Colony, Sanat Nagar, Srinagar. That the above referred FIR has been registered against him for political considerations and it has no basis in the eyes of law, for, it alleges the petitioner to be having property disproportionate to his known source of income viz. a palatial house spread over two kanals of land at Budshah Colony, Sanat Nagar, and other assets like bank balance etc. acquired through corrupt means. 5. It is pleaded that petitioner draws a pay-scale of 37400-67000, and his wife belongs to a very rich family besides being a high paid employee in the Education Department. 6. By depicting the background of the couple, the writ petition seeks to convey to this court as to how sound the financially the couple is, therefore, the property at their credit together has been counted for petitioner alone, therefore, he is being dragged in an unnecessary criminal case. 7. The petitioner pleads that police station VOK while assessing the property has also included in the name of petitioner the assets belonging to his wife. 8. This is in brief, the summary of the case. The other aspect that the petitioner pleads in the writ petition is the fabrication of the FIR. He pleads that he has been posted with the Hon'ble Ministers of the time many times and after the regime changed, he was made scapegoat for none of his faults. 9. 8. This is in brief, the summary of the case. The other aspect that the petitioner pleads in the writ petition is the fabrication of the FIR. He pleads that he has been posted with the Hon'ble Ministers of the time many times and after the regime changed, he was made scapegoat for none of his faults. 9. Petitioner further pleads that the Investigating Officer of the case while concluding his investigation has also opined that property of the wife of the petitioner has been included while making assessment of the petitioner's property. 10. I have heard learned counsel for the parties and considered the matter. 11. At the outset the opinion rendered by the Law Officer of VOK as reflected in the supervisory comments of Senior Superintendent of Police (ABP) VOK, is reproduced hereinbelow, thus: "The law officer of this wing has discussed the Case briefly in FIR IInd. After Legal scrutiny he has opined that a weak link has been established by virtue of oral statements, in respect of residential house at Sanant Nagar. The Investigating Officer has not succeeded in connecting the said property to accused. The oral evidence on record may not be sufficient to prove the guilt of the accused." 12. It is stated, at the cost of repetition, that petitioner has given explanation of his assets and has represented against his involvement in a frivolous criminal case. The representations so addressed have not been decided but presumption is that they have been denied by issuance of sanction for prosecution. 13. The petitioner's pleas raised in paragraph 5, 6, 7 and 12, that the land and the structure constructed over it at Budshah Colony, Sanat Nagar does not belong to him but to his wife; that the income obtained through the proprietary agricultural land, share from rice husking, and private practice has not been taken into account while preparing the inventory of his income; that despite there being clear cut remarks by the Law Officer, reflected in the supervisory observations by the Senior Superintendent of Police, that the property at Budshah Colony Sanat Nagar appears to be the property of petitioner's wife; that the income shown against the name of petitioner has been detailed out and explained as well, has all gone unopposed, therefore, deemed to be admitted. 14. 14. This being the position, the case of the petitioner appears to have been admitted in toto, because, the vital aspects those have been reflected in the explanation tendered by the petitioner before the VOK, have all been admitted, but amazingly, at the very same time, the income earned through such sources has not been taken into account while assessing le property of the petitioner. 15. The plea of the petitioner that sanctioning authority has not applied its mind, in such circumstances is presumed to be true. Moreso for the reason that this plea has also gone unopposed. 16. Keeping in view the opinion of the Law Officer coupled with the fact that both petitioner and his wife are well paid employees, and the reasonable explanation given by the petitioner to the investigating agency the case appears to be feeble, having no scope for two opinions. 17. Having regard to above narration, FIR No. 36/2007 of Police Station VOK, and the exercise made in consequence thereof is quashed. 18. In the circumstances, the petition succeeds and is allowed. 19. Disposed of.