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2022 DIGILAW 497 (JK)

Waseem Qureshi v. State of Jammu & Kashmir

2022-09-15

M.A.CHOWDHARY

body2022
JUDGMENT CCP (S) 66/2021 1. Petitioner has preferred this application for initiation of contempt proceedings against respondents for flouting the order dated 7.5.2018 passed by this court in CRMC No. 179/18 against the Secretary to Govt. of J&K Law Department, for issuing the circular dated 25.11.2020. 2. The petitioner has asserted that he had filed a petition under section 561-A Cr.PC before this court which was registered as CRMC No. 179/2018, having been aggrieved of the acts of commission at the hands of official respondents as well as Vigilance Organization Kashmir ( now ACB) stating therein that an FIR No. 28/2010 was registered at Police Station VOK against the persons named therein for the commission of offences punishable U/Ss 5 (1) (c ), 5 (1) ( d) of the Prevention of Corruption Act, Svt. 2006 read with Section 120-B, 409,468 and 471 RPC on 29.7.2010 and that the petitioner had not been named in the FIR. It was further pleaded that Vigilance Organization, however, during the investigation connected the petitioner to the commission of offences. Despite the order passed by this court, the petitioner was called to the anticorruption Court, Srinagar for presentation of challan and thus they are in the contempt of court for having flouted the order passed by this court on 7.5.2018 whereby the prosecution in FIR No. 28/2010 registered at Police Station VOK had been stayed. It was further alleged that the Secretary to Govt. Department of Law, Justice and Parliamentary Affairs had issued a general Circular bearing No. 07-JK(LD) of 2020 dated 25.11.2020 by misinterpreting the order and judgment dated 28.03.2018 of the Hon'ble Supreme Court of India passed in Asian Resurfacing of Road Agency Pvt. Ltd. & Anr Vs. Central Bureau of Investigation, directing all the Administrative Secretaries/HODs to review all administrative actions/procedure held up on account of interim Court orders and in case the orders are more than six months old, treat the orders as expired and proceed accordingly. It was alleged that in view of the circular issued by the Law Department the respondents in contempt of court order passed by this court called the petitioner before the anticorruption court to produce the charge sheet against him. Hence this petition. It was prayed that Rule be framed against the respondents for willful and intentional violation of the order dated 7.5.2018. 3. Hence this petition. It was prayed that Rule be framed against the respondents for willful and intentional violation of the order dated 7.5.2018. 3. Pursuant to notice the respondents filed statement of facts through respondent Nos. 02 and 04 asserting therein that the respondents have highest regards for the court that the prosecution of the case FIR No. 28/2010 registered against the accused including the petitioner had been stayed by this court vide order dated 7.5.2018 and the Government had also sanctioned prosecution vide order No. 53-GAD (Vig) of 2017 dated 21.8.2017. It has been further pleaded that the law department issued circular No. 07-JK(LD) of 2020 dated 25.11.2020 which was endorsed to all the Administrative Secretaries to the Govt. and all HOD's for compliance. In view of that circular answering respondent no. 4 in order to implement the instructions given in the circular and in sincerity and in good faith intimated the accused petitioner through answering respondent no. 2 to be present before the Trial Court for presentation of the charge sheet. However, in the meantime legal guidance was received from Law Officer with the instructions not to file charge sheet before the Trial Court and as a result neither the charge sheet was presented nor the accused petitioner was produced before the court, as such, no contempt as alleged in the contempt petition was committed by the respondents. 4. Heard and considered. 5. Learned counsel for the petitioner vehemently argued that the respondents cannot take refuge of misinterpreting the Supreme Court Judgment for having committed willful contempt against the order of this court and prayed that the rule be framed against them and they be convicted for undergoing punishment. 6. Ms. Asifa Padroo learned AAG, appearing for the respondents argued that since no action had been taken against the order of this court as charge sheet had not been produced, therefore, the contempt cannot be said to be constituted. She further argued that circular in question had been issued by the law Department of J&K Government under a misconception based on the Supreme Court Judgment passed in Asian Resurfacing of Road Agency Pvtr. Ltd. & Anr. Vs. Central Bureau of Investigation, in terms whereof it had been ordered that the stay granted by the courts shall vacated on expiry of six months from the date of such order unless extension is granted by a speaking order. 7. Ltd. & Anr. Vs. Central Bureau of Investigation, in terms whereof it had been ordered that the stay granted by the courts shall vacated on expiry of six months from the date of such order unless extension is granted by a speaking order. 7. On a careful consideration of the matter it appears the Department of Law, Justice and Parliamentary Affairs issued circular No. 7-JK(LD) of 2020 dated 25.11.2020 under a wrong notion that this order was applicable to other agencies as well other than courts though this order had been passed having regard to the staying of the proceedings before the courts and tribunals by the superior courts and not disposing of the matters before the appellate courts within six months, therefore, this judgment is not applicable to the investigating agency, as such, Govt. by issuance of this circular had misconceived the directions of the Supreme Court. 8. Learned counsel for the respondent has submitted that this circular was withdrawn the very next date realizing the mistake committed by the Govt. The respondents in view of the compliance of this circular had though called the petitioner to the Court but the charge sheet was not filed against him nor was he produced before the court, therefore, the action on the part of the respondents is not found to constitute contempt of court for flouting the orders passed by this court. 9. For the reasons and the observations made hereinabove, the contempt proceedings initiated against the respondents are dropped. Petition is accordingly disposed of. 10. The main petition alongwith connected matters shall be listed for consideration on 07.10.2022.