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2016 DIGILAW 270 (JK)

State of J&K v. Khursheed Ahmad Naqeeb

2016-05-14

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : Mohammad Yaqoob Mir, J. 1. By instant petition order dated 11.07.2015 passed by the Court of Special Judge Anti-Corruption, Kashmir, is sought to be set aside. By virtue of the order impugned, application of the prosecution filed under Section 540 Cr.P.C for summoning material prosecution witnesses i.e. PW 5 Mohammad Aslam Khan, then Executive Engineer, M. E. D, Srinagar, PW 6 Nazir Ahmad Kawoosa, then P. A to Vice Chairman LAWDA, PW 10 Vijay Kumar Kilam, then Chief Engineer Mechanical, Kashmir (now retired), PW 12 Girdari Lal Choorasia, the then AEE, Mechanical (now retired), PW 14 Abdul Gani Sofi, the then Financial Advisor, LAWDA, PW 15 P. K.Bala Subramanian, the then Director M/S Tebma Shipyard, Chennai, PW 16 Constable Farooq Ahmad No.1539/S, then posted in VOK, and PW 20 M. Shekar, the then Director Administration, M/S Tebma Shipyard, Chennai, has been dismissed. 2. The factual position reflected in the order is not disputed i.e. charge sheet (challan) has been filed before the Court of Special Judge, Anti-Corruption, Srinagar, on 18.12.2002. Accused have been put to trial vide order dated 3rd August, 2004 i.e. when the charge has been framed against them. After framing of charge, it appears that the order providing for framing of charge was challenged and the proceeding, as such, remained stayed from June, 2006 to September, 2009. The prosecution has been given numerous opportunities for producing the witnesses including the witnesses who were sought to be produced and examined pursuant to the application filed. The prosecution evidence has been closed on 20th June, 2013, that too after three warnings i.e. three preemptive orders have been recorded by the learned trial court. 3. The accused stand examined in terms of Section 342 Cr.P.C on 21st May, 2014. Accused perhaps have not chosen to lead any evidence in defence, as a result whereof, final arguments commenced and matter has been heard in part on 27th June, 12th July and 19th July, 2014. Written arguments have also been filed by some of the accused. 4. The accused stand examined in terms of Section 342 Cr.P.C on 21st May, 2014. Accused perhaps have not chosen to lead any evidence in defence, as a result whereof, final arguments commenced and matter has been heard in part on 27th June, 12th July and 19th July, 2014. Written arguments have also been filed by some of the accused. 4. Prosecution, perhaps noticing deficiency and the lacunas, have filed application for invoking powers under Section 540 Cr.P.C, only after the matter was partly heard, which the learned trial court has rejected by observing that the case has been pending from 2002 though for three years matter had remained stayed but that apart sufficient time of over four years had been granted for producing the witnesses. 5. Learned trial court has also examined the scope of Section 540 Cr.P.C in its right perspective. Section 540 Cr.P.C clothes the Court with a power to summon any witness, examine any person or to recall any witness at any stage of enquiry trial but the litmus test for so doing is that the evidence of such person must appear to be necessary for just decision of the case. This power is still available with the trial court, may be after hearing the parties, examining the entire record, trial court may feel necessity for examining any witness, he can examine that witness but that has to be left to the discretion of the trial court. 6. Moving of application by the prosecution cannot be denied but such application shall not be aimed at filling up the lacuna. It is not understandable as to why the prosecution has slept over the matter, why Investigating Officer has not taken proper measures for ensuring and helping success of the case, why for four long years they have taken the matter lightly and why prosecution has not responded to the three pre-emptive orders as passed by the learned trial court cautioning them to produce the witnesses. No justification whatsoever in that direction is forthcoming which would have persuaded the trial court to call the said witnesses. 7. Corruption is a very dangerous social evil which has destroyed social fiber. Such persons who indulges in corruption are required to be dealt with iron hand but courts of law cannot afford to be swayed, they have to administer justice according to law. 7. Corruption is a very dangerous social evil which has destroyed social fiber. Such persons who indulges in corruption are required to be dealt with iron hand but courts of law cannot afford to be swayed, they have to administer justice according to law. If strong prosecution wing is in place, what can be the justification of that prosecution wing or the investigating agency in not ensuring production of the witnesses, that too for a long period of four years. Is it not an appropriate time that the concerned authorities should rise to the occasion and monitor the situation. It is only when they show real dedication, there can be scope or chance for success of the case. Is it appropriate for the authorities to rise only when the trial reaches to final stage. To move an application under Section 540 Cr.P.C, in the instant case, is simply to show that whatever was required to be done has been done by them, which, in effect, is an idle formality. 8. Speedy trial is a fundamental right, same cannot be allowed to be jeopardized. Accused in the name of trial cannot be dragged for decades together. It is for the prosecution to prove the case so that person who will be proved guilty can be punished. That would send a loud message to all that corruption is an evil and there is no question of latitude. It is quite disturbing that both prosecution wing as well as concerned Investigating Officer have not taken proper measures for producing the witnesses. Their indolence is quite evident. For a period of 14 years excluding the period of three years during which period there was stay, prosecution has not been so prompt to produce all the prosecution witnesses. Even order of rejection of their application under Section 540 Cr.P.C has been challenged after considerable delay. 9. Invoking powers under Section 540 Cr.P.C, that too at the behest of prosecution, in the stated facts and circumstances, has rightly been declined by the trial court. Power under Section 435 Cr. P. C. has to be exercised for satisfying the correctness, legality or propriety of the order and regularity of the proceedings. No infirmity, illegality or impropriety is noticed which would warrant indulgence by invoking powers under Section 435 Cr.P.C. It being so, petition is dismissed and order impugned is maintained. Power under Section 435 Cr. P. C. has to be exercised for satisfying the correctness, legality or propriety of the order and regularity of the proceedings. No infirmity, illegality or impropriety is noticed which would warrant indulgence by invoking powers under Section 435 Cr.P.C. It being so, petition is dismissed and order impugned is maintained. Learned trial court shall conclude the final determination of the case with promptitude with a word of caution that if the trial court while examining the entire record for final determination finds necessity of examining any material witness or person, who in his opinion shall be necessary for just decision of the case, dismissal of this petition shall not stand as a bar. Observations made herein above shall not be treated as expression of opinion about the merits of the case. 10. Dismissed as above along with connected Cr.MP. 11. Copy of the order be sent to the Court of Special Judge Anti-Corruption, Srinagar, for information and compliance.