Haleema And Others vs State Of J&K And Others

Sanjay Dhar, J

1) Instant petition has been filed by the petitioners challenging order dated 16.06.2009, passed by the Court of learned Additional District & Session Judge, Anti-corruption, Srinagar, on the applications of the petitioners seeking release of payment orders/CDRs/instruments, in their favour.

2) As per the facts available on record, a scheme called "Jawahar Rozgar Yojna" came to be introduced by the Central Government that vwas aimed at creation of assets in the rural areas of erstwhile State of Jammu & Kashmir. The implementation of the scheme was entrusted to Rural Development Department of the Government. The power to allot these development works under the scheme was within the jurisdiction of the officers and officials of the Rural Development Department. Complaints were received that these officers and officials had misused their official position and swindled huge amounts. In this regard various cases came to be registered by the Vigilance Organization, Kashmir, which culminated in presentation of a challan before the Court of Special Judge, Anticorruption, Srinagar. During the course of investigation of the case, certain bank accounts were frozen and vide order dated 21.09.1993, learned Special Judge, Anticorruption, Srinagar, passed a restraint order against the contemplated disbursement of amounts. Some of the applicants/accused succeeded in getting the amount released by virtue of various orders passed by learned Special Judge, Anticorruption, Srinagar and these orders were challenged before this Court by virtue of nineteen separate Revision Petitions.

3) The aforesaid petitions came to be disposed of by this Court vide order dated 20.10.2000 passed in a batch of Revision Petitions with Revision Petition No.9/2000 being the lead case. While allowing the petitions and setting aside the order of learned Special Judge, Anticorruption, Srinagar, the Court directed the learned Special Judge to reconsider the matter in the light of material collected by the Vigilance Organization, Kashmir, during the course of further investigation of the case.

4) The matter was again considered by the Successor Court i.e. learned Additional Sessions Judge, Anticorruption, Srinagar, and vide order dated 16.06.2009, the applications of the petitioners came to be dismissed. It is this order which has been challenged by the petitioners through the medium of instant petition.

5) It is pertinent to mention here that the impugned order was previously challenged by the petitioners by filing a petition under Section 561-A Cr. P. C (561-A Cr. P. C No.143/2009) before this Court. Vide order dated 26.03.2012, this Court, while repelling the challenge to the impugned order, gave liberty to the petitioners to approach this Court once again in case the trial is delayed for unreasonable period.

6) I have heard learned counsel for the parties and perused the record of the case.

7) It is contended by learned counsel for the petitioners that nothing incriminating has been brought on record that would disentitle the petitioners from claiming the amount of FDRs belonging to the petitioners. It is further contended that the amount sought to be released is not remotely connected with the embezzled amount. It has been further contended that the petitioners had approached the learned Special Judge, Anticorruption (Additional Sessions Judge), Anantnag, to whom the case stands transferred now but in view of the order passed by this Court on 26.03.2012 in 561-A No.143/2009, the learned Special Judge refused to entertain their applications. It is also averred that the trial of the case is still pending.

8) After going through the impugned order passed by learned Additional Sessions Judge, Anticorruption, Srinagar, it appears that the learned Judge has declined to release the amount in favour of the petitioners on the ground that some of the petitioners are accused in the main/supplementary challan, whereas, some others figure in the annexures to the supplementary challan which contain the list of non-existent persons. The record placed by the parties before this Court does not reveal the particulars and details of the persons figuring in the annexures to the supplementary challan nor does it reveal the particulars of the persons falling in the list of accused in the main challan and the supplementary challan.

9) For deciding the controversy at hand and for dealing with the contentions raised by the petitioners, it is necessary to examine the record of the charge sheet that has been placed before the learned trial court. However, summoning of the record for disposal of the instant petition will lead to delay in the progress of trial which is already proceeding at a snail's pace. In absence of the trial court record, it is not possible to effectively adjudicate the instant petition. In these circumstances, the only option available with the Court is to give liberty to the petitioners to approach the trial court once again for release of the seized amounts.

10) For the foregoing reasons, the petition is disposed of with liberty to the petitioners to approach the trial court by way of an appropriate application seeking release of payment orders/CDRs/ FDRs. It is made clear that in case such an application is made by the petitioners, order dated 26.03.2012 passed by this Court in 561-A No.143/2009, shall not come in the way of the trial court in deciding the application on its merits. Further the trial court shall be at liberty to take a view in the matter on its own merits in view of the change of circumstances, if any, without getting influenced by the impugned order.