Jatinder Nath Bakshi vs State of J&K & Ors.

The order dated 25th of October, 2008 passed by Special Judge Anti Corruption, Srinagar Kashmir is sought to be quashed in this petition.

A communication was addressed by one Spectra Vision Consultants to the then Chief Engineer, J&K UEED, Srinagar dated 10th of October,

1993 which post at that time was held by the present petitioner, informing him that the Spectra Vision Consultants are architects and model makers

and Engineering consultants. It was further conveyed through this communication by the author of the communication who is shown to be some

Shafiq Ahmad that he read news item in the National Press and learnt that measures are being taken by the State Government for restoring the

health and environment of Dal Lake. It was proposed by the said firm that they would like to prepare a model for the Dal Lake showing all the

roads, villages, residential houses and other works in the vicinity of the lake and also the encroachments made therein. It was further informed that

in case department is interested to take up work, the agency will prepare the model for the department at the rate of 3.25 lacs (rupees three lacs

twenty five thousand only) quoted in the said communication. This communication is placed on record of this petition and is relied upon by the

learned counsel for petitioner. This communication is also stated to be part of the material which has been produced before the learned Special

Judge Anti Corruption, SrinagarKashmir along with report under section 173 Cr.P.C. This communication reveals that Chief Engineer on 14th of

October, 1993 marked the communication to Executive Engineer with the observation that ""I agree that a model be got prepared pinpointing all

details. This be got expedited."" Subsequently, petitioner wrote communication to Commissioner/Secretary to Government, Housing and Urban

Development Department, J&K Government, Srinagar bearing no. UEED/104446 dated 29061994 in which the said authority was informed that

petitioner has received a communication from Executive Engineer, Lake Division No. 1st, Srinagar in which it was alleged that model was taken

away by some unidentified person and thrown in the lake. The present petitioner in the said communication informed the above authority that he

has directed the Executive Engineer to write off the item as it will not be advisable to lodge FIR with the Police, in the face of threat to the lives of

the staff members carrying the model and request was made for approving the action taken.

However, it surfaced that Spectra Vision Consultants is a non existing firm and the petitioner in criminal connivance with the Executive Engineer

manipulated everything for causing wrongful loss to State exchequer and wrongful gain to himself by abuse of his official position. An FIR 60/97

was accordingly registered with the Police Station, Vigilance Organization, Kashmir for commission of offence under Section 5(1)(d), Prevention

of Corruption Act, read with Section 120B RPC against the Executive Engineer. After conclusion of the investigate on report under Section 173

Cr.P.C was filed before the leaned Special Judge Anti Corruption, SrinagarKashmir. Learned Special Judge Anti Corruption, SrinagarKashmir

after considering material on record not only ordered for framing of charge against accused who was send up for trial but the learned trial Judge in

terms of section 190 Cr.P.C. ordered that present petitioner be arrayed as accused and notice for his appearance was ordered to be issued to

him. This order is challenged in this petition by the petitioner inter alia on the grounds that material collected by the investigating agency during the

investigation of the case does not even remotely inculpate the present petitioner for the alleged commission of offence and has been wrongly

ordered to be summoned by the learned Judge.

Heard learned counsel for parties. Considered the matter.

Learned counsel for petitioner has referred to some paragraphs of the order impugned to state that without there being any material/evidence,

learned trial Judge has initiated action against the petitioner. To further buttress his arguments, learned counsel for petitioner has referred to the

communication dated 10th of October, 1993, 29th of June, 1994, as also one communication of Executive Engineer Dated 27th of June, 1994 to

canvass his point that perusal of these documents would show that present petitioner is not involved in the commission of offence. Learned counsel

for petitioner after reading impugned order tried to plead that no evidence/material is brought on the record which would warrant for passing of

impugned order. Learned counsel, accordingly, sought quashment of the order so far it pertains to petitioner.

Learned counsel for petitioner initially sought quashment of the order by referring to and placing reliance on case titled Ranjit Singh (Appellant)

Vs. State of Punjab (Respondents) reported in (1998) 7 SC 149 and canvassed that a person who is not send up for trial by investigation agency

can not be ordered to be arrayed as accused by the learned trial Judge and it is only after some evidence during the trial is recorded which would

inculpate that the person sought to be arrayed as accused, that an order like impugned in the petition can be passed. The judgment referred to and

relied upon by the learned counsel for petitioner refers to powers given to courts of Sessions under section 319 of C.P.C (Central) and the

provision in the State Cr.P.C is 193. It was brought to the notice of the learned counsel for petitioner that the law laid down by the Hon'ble

Supreme Court would not be applicable to the facts of this case because the learned Special Judge Anti Corruption, SrinagarKashmir though

Sessions Judge, in terms of the Criminal Law (Amendment) Act has to conduct the trial of the proceedings as a magistrate and warrants procedure

is to be followed by the learned Judge. Learned counsel submitted that in view of this legal position the reliance placed on the judgment is

misplaced. Learned counsel further submits that in view of this legal position learned Special Judge Anti Corruption, SrinagarKashmir has definitely

the powers to summon the person under Section 190 Cr.P.C., when the learned Judge comes to conclusion on the basis of the evidence/material

that such person is required to be arrayed as accused in the case. However further submitted that there was no evidence/material before the

learned Special Judge Anti Corruption which would warrant for passing impugned order.

The impugned order reveals that during the investigation of the case it has been prima facie proved by evidence of the one Narinder Kumar

Zakhmir whose statement is recorded under section 161 Cr.P.C. that Spectra Vision Consultants is non existent firm. It is admitted that

communication dated 10th of October, 1993 was sent by Spectra Vision Consultants to the present petitioner. It is also not in dispute that present

petitioner recorded observation on the said communication wherein he agreed that a model be got prepared pinpointing all the details. The

communication dated 29th of June, 1994 is also admitted to be sent by the petitioner, as reliance is placed by the petitioner on this communication

to exculpate himself from the charges leveled against him.

The reading of the communications would prima facie show that no conscious decision was taken for preparing the model for the Dal Lake. The

material also shows that it was not also provided that in case model is to be prepared then all concerned agencies should be informed by issuing

tender notice to enable all to participate in such process. The amount of Rs. 3.25 lacs quoted as rate by the Spectra Vision Consultants appears to

have accepted without any demur. The impugned order reveals that besides Narinder Kumar, other prosecution witnesses have also supported the

view taken by the learned Special Judge Anti corruption, SrinagarKashmir in the impugned order. The petitioner has projected his innocence on

the ground that without his information and without his knowledge the order has been placed on the Spectra Vision Consultants. If this was the fact

situation then once it was brought to the notice of the petitioner that model has been forcibly taken away by some unidentified person and thrown

into the Dal Lake, petitioner should have immediately initiated action against the Executive Engineer for having placed supply order without his

information and without his knowledge and for having paid the amount from State exchequer to the tune of Rs. 2.5 lacs. The petitioner instead of

taking action wrote communication of which reliance is placed by the petitioner himself to cover up the whole incident. Petitioner prima facie

appears to have committed offences and there is material and evidence to support this view and thus requires to be put on trial.

Section 190 of Code of Criminal Procedure, Svt. 1989 (for short, Code) falls in partB of the Code and refers to the conditions requisite for

initiation of proceedings. The said partB starts from section 190 of the Code which is reproduced as under:

Cognizance of offence by Magistrate:

Except as hereinafter provided, [any Chief Judicial magistrate and any other Judicial Magistrate] specially empowered in this behalf, may take

cognizance of any offence

a. upon receiving a complaint of facts which constitute such offence;

b. upon a report in writing of such facts made by any police officer;

c. upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been

committed.

The [High Court may empower any Judicial Magistrate] to take cognizance under subsection (1), clause (a) or clause (b), of offences for

which he may try to commit for trial.

The [High Court may empower any Judicial Magistrate] of the first or second class to take cognizance under subsection (1), clause (c), of offences

for which he may try to commit for trial.

Section 190(1)(b) provides that learned Magistrate may take cognizance of any offence upon a report in writing of such facts made by any

police officer.

In this case, learned Special Judge Anti Corruption is empowered to try offences under the J&K Prevention of Corruption Act, Svt. 2006. In

view of the Criminal Law Amendment Act, learned Special Judge is to follow procedure which is required to be followed in warrant cases.

Learned Special Judge is thus the Judge before whom report under section 173 Cr.P.C, is filed and it is on the basis of said report and

evidence/material enclosed therewith and after entering satisfaction cognizance of offence is taken and process is ordered to be issued against the

person who in the judicial wisdom of the learned Judge has prima facie committed the offence and is required to be put on trial. Section 190 of the

Code is thus the provision which authorizes learned Special Judge to take cognizance of offence even against a person who has not been send up

for trial by the investigating agency while filing report under section 173 Cr.P.C. Learned Special Judge has jurisdiction and power to order for

issuance of process against such a person, who though not send up for trial by the investigating agency but against whom evidence/material is

available on the record. The provision of section 193 of the Code has no application to the facts of this case as in this case. After filing of the

report under section 173 Cr.P.C., case is not to be committed to the sessions court. For these reasons learned Special Judge has power to take

cognizance of offence and issue process against a person not named in the challan by the Police. The order passed by the learned Special Judge

well within the jurisdiction of learned Special Judge and in view of the facts obtaining in this case, the process has been rightly issued against the

petitioner.

For quashing of the proceedings or the order under section 561A Cr.P.C. an extraordinary case is to be made out. The power is to be

exercised by the Court in rarest of rare cases and powers to be exercised with great caution as has been mandate by the Hon'ble Supreme Court

in plethora of judgments. This case is not a case which fall within the category of rarest of rare cases.

The order impugned in this petition is held to be legal and valid. This petition is according dismissed along with all connected CMP(s).