Hamidullah Bhat vs State Of J&K

1) This Criminal Revision is directed against the order dated 21.01.2016, passed by learned Special Judge, Anti-corruption, Kashmir, Srinagar,

whereby defence evidence of the petitioner/accused has been closed.

2) Briefly stated, case of the petitioner is that he is facing trial in case FIR No.37/1996 for offence under Section 5(1)(e)/5(2) of J&K Prevention of

Corruption Act, 2006 Svt. read with Section 12/14 of Jammu and Kashmir Public Men and Public Servants Declaration of Assets and other Provisions

Act, 1983. It is averred that it took 15 years for the prosecution to complete its evidence where after the statement of the petitioner/accused under

Section 342 of the Cr. P. C was recorded. The petitioner/accused is stated to have led his evidence excepting that the record which was sought to be

summoned by the petitioner/accused from Superintendent of Police, Vigilance Organization, Srinagar, and Secretary to Govt. General Administration

Department, Srinagar, has not been permitted by the learned trial court on the ground that the said record was already requisitioned by the trial court in

terms of its order dated 18.08.1998.

3) According to the petitioner, the documents which were sought to be summoned by him are very vital to his case, inasmuch as three preliminary

verifications relating to same charge were conducted by the Vigilance Organization, Kashmir, against the petitioner and the same were closed. It was

contended that in the absence of these documents, a great prejudice will be caused to the petitioner/accused.

4) Learned counsel for the respondent, on the other hand, has submitted that the instant petition has been made just to delay the matter. According to

the learned counsel, the case is pending before the trial court since the year 1997 and the present revision petition has been devised to just delay the

matter.

5) I have heard learned counsel for the parties and perused the impugned order, grounds of challenge and the trial court record.

6) The learned trial court has rejected the prayer of the petitioner for summoning of record pertaining to previous verifications/ investigations

conducted by the Vigilance Organization against the petitioner, on the ground that these documents were requisitioned at the instance of the accused

at the very initial stage by way of an application which was allowed by the trial court vide its order dated 18.08.1998.

7) A perusal of the trial court record reveals that the petitioner has filed an application for summoning of defence witnesses along with certain

records. One of the witnesses summoned is Superintendent of Police, Vigilance Organization, Kashmir. The said witness has been summoned to

produce the following record:

a. CV-1-G-71/78-IRRI-96 dated 11.05.1981

b. 345/VOK dated 29.09.1986

c. 302/HQRS dated 19.06.1995

d. CV-PV-PS-G/182/85-1216 dated 30.05.1986

e. CV-TROP/344/86-11(3)

f. CV-MISC-88-2912

g. OrderspassedbyCommissioner Vigilance between 01.12.1996 to19.12.1996 in the case of Hamidullah Trali, the then Executive Engineer.

8) The trial court record reveals that prior to framing of charge against the petitioner/accused when direction dated 18.08.1998, was issued, all the

aforementioned documents have not been actually produced before the trial court pursuant to the said direction. The petitioner’s contention is that

some of the documents sought to be summoned pertain to the preliminary verifications conducted by the Vigilance Organization regarding the same

charge which is subject matter of the case before the trial court and that these documents would show that the case was closed by the Vigilance

Organization against him. Thus, the said documents appear to be vital to the case of the defence. If prayer of the petitioner for summoning of the said

record is declined, it is definitely going to have an adverse impact on his case, inasmuch as he will lose a fair chance of proving his defence.

9) Fairness is hallmark of a criminal trial and defence of an accused cannot be shut out merely because the case has been dragged on for decades

together, particularly when the delay has occasioned not because of lethargy of the accused/ petitioner but because the prosecution has itself

contributed to the same to a large extent. Adducing of evidence in defence is a valuable right of an accused which cannot be snatched away on a

ground which is not borne out from the record. In the instant case, the learned trial court without looking into the record and ascertaining the fact

whether all the documents which the petitioner has sought to summon were produced pursuant to the order dated 18.08.1998, has proceeded to reject

the prayer of the petitioner and closed his evidence. Such an order is unsustainable in the eyes of law, being without any basis and against the record.

The order, as such, deserves to be set aside.

10) So far as the production of documents from the Secretary to Government, General Administration Department, is concerned, the same include

some SRO’s and other orders which the petitioner can otherwise obtain without actually summoning the officer concerned. Therefore, to that

extent, learned senior counsel for the petitioner has fairly conceded that he would not press for summoning of the said officer along with record.

11) For the foregoing reasons, the petition is allowed and the order dated 21.01.2016 passed by the trial court is set aside. The learned trial court is

directed to summon Superintendent of Police, Vigilance Organization, Kashmir, along with entire record, particulars whereof the petitioner/accused

has mentioned in his application for summoning of witnesses. The respondents would do well to produce the said record immediately upon receipt of

summons from the learned trial court without wasting any time as the case has remained on the dockets of the learned trial court for the last more

than two decades.

12) The learned trial court shall make every endeavour to decide and dispose of the case within one month from the date a copy of this order along

with record is received by it.

13) The trial court record along with a copy of this order be sent back.