Mohammad Sidiq Shosha vs State of J & K

While working in Kamraz Rural Bank, Sopore, petitioner had received cash from various account holders for depositing the same in their

respective accounts, which was not done, as a result of which an amount of Rs. 8,63,0487is stated to have been embezzled by him. FIR

No.RC7(A)/99 Police Station CBI, was registered on 9.6.1999 by Superintendent of Police, C.B.I, under Sections 409,420,468,471,477A, 201

R.P.C and Section 5(2) read with Section 5(1) (c) of Jammu and Kashmir Prevention of Corruption Act, 2006. After concluding the investigation,

sanction for prosecution was obtained and report under Section 173 Cr.P.C stood filed before Special Judge AntiCorruption Srinagar.

At the time of framing of the charge, petitioner raised two preliminary objections, viz. (a) that investigation was conducted by an unauthorized

person, and (b) that investigation conducted on the directions of Chief Judicial Magistrate Srinagar was incompetent as the Court did not have the

territorial jurisdiction to issue such a direction. Special Judge AntiCorruption, vide his order dated 9.3.2004 rejected both the preliminary

objections and directed for framing of charge against the petitioner. Feeling aggrieved of this order, a revision petition came to be filed before this

Court and vide order dt. 19.11.2005, the revision petition was allowed and the trial Court was directed to hear the parties afresh and pass

appropriate orders within one month. The matter was reconsidered by the trial Court where the petitioner repeated the contentions raised earlier

by him. After hearing the parties, the contention of the petitioner was rejected and charge was framed against him. It is under these circumstances

that present petitions have been filed.

I have heard learned counsel for the parties and perused the record. The argument addressed by the petitioner on the question of framing of

charge are similar to the one that he raised before the trial Court. His contention is that Raghbir Singh had conducted the investigation in relation to

the seizure of documents, without any' authorization. He stated that since an unauthorized/incompetent person has been allowed to conduct the

investigation, the same cannot be sustained, as such, whole trial is vitiated on this account.

Analyzing the contention of the petitioner, it be seen that the petitioner has relied on Section 3 of the Jammu and Kashmir Prevention of

Corruption Act, Svt. 2006. In order to appreciate the controversy, it will be relevant to quote Section 3 of the Act, which reads thus:

Certain offences to be cognizable:

An offence punishable under Section 5 of this Act or under section 161 or section 165 or section 165A or section 167A of the State Ranbir Penal

Code, Samvat 1989 shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure, Samvat 1989

notwithstanding anything to the contrary contained therein:] Provided that no Police Officer below the rank of the Deputy Superintendent of Police

shall investigate any such offence without the order of a Magistrate of the first class or make any arrest thereof without a warrant.

Provided further that if an officer of the Vigilance organization of and above the rank of a SubInspector of Police is specially authorized in writing

by an officer of the Vigilance organization not below the rank of an Assistant Superintendent of Police to investigate such offence, such officer may

investigate the offence specified in the order of authorization. But such officer shall not be competent to arrest any person during such investigation,

unless a Police Officer not below the rank of a Deputy Superintendent of Police authorises such arrest under section 56 of the Code of Criminal

Procedure, Samvat, 1989.

The import of Section 3 reveals that no Police Officer below the rank of the Deputy Superintendent of Police shall investigate any such offence

without the order of a Magistrate of the first class or make any arrest thereof without any warrant. However, the proviso appended with the

Section permits investigation by any person above the rank of SubInspector, if he is specially authorized by an Officer of the Vigilance organization

not below the rank of Assistant Superintendent of Police. The only rider placed on such an officer is that officer shall not be competent to arrest

any person during such investigation.

Applying this principle to the present case, it clearly reveals that there was no authorization given by the Magistrate to Raghbir Singh, Inspector

to hold the investigation, however, it is not denied that Superintendent of Police, C.B.I had authorized Raghbir Singh to conduct the investigation in

the matter. It clearly emerges that Raghbir Singh was authorized to investigate the case by Superintendent of Police, C.B.I, thereby bringing this

case under the proviso to Section 3 of the Jammu and Kashmir Prevention of Corruption Act, 2006.

7.1 do not find any force in the contention raised by Mr. Qayoom in this behalf that the investigation conducted by Raghbir Singh, without

authorization of the Magistrate, could vitiate the whole investigation, more particularly in view of proviso to Section 3 of the Act which permits such

investigation.

The other aspect which is required to be seen is whether any illegality or irregularity committed during the course of investigation, could render

the investigation nullity in the eye of law.

Even if it is assumed that requirement of Section 3 is mandatory, test to determine the effect of such investigation, if found to be irregular or

illegal, is as to whether any miscarriage of justice has been caused to the petitioner. Since it is nowhere pleaded by the petitioner that as a result of

investigation some miscarriage of justice has been caused to him, it can be said that no miscarriage of justice has been caused on account of such

investigation. I am fortified in this view by a judgment of Hon'ble Supreme Court of India in MunnaLal vs. reported as AIR 1964 SC, 28, where

their lordships have held as under:

Held that though the letter of S.5A of the Act was complied with its spirit was not, for in reality there was no investigation by the officer authorized

under that Section and the real investigation was by a subinspector of police who was never authorized. S.5A is mandatory and not directory and

an investigation conducted in violation thereof is illegal. Even if however there was irregularity in the investigation and S.5A was not complied with

in substance, the trials could not be held to be illegal unless it was shown that miscarriage of justice had been caused on account of illegal

investigation. There was no miscarriage of justice in these cases at all due to the irregular investigation.

This view has been further fortified by the Apex Court in A.C. Sharma v. Delhi Administration, AIR 1973 SC, 913.

Coming to the second question raised by Mr. Qayoom that Chief Judicial Magistrate had no competence to authorize Rafique Ahmad to

investigate the matter.

This question is to be understood in terms of permission grated to investigate the case under the Delhi Special Police Establishment Act, 1946

whereby the Chief Judicial Magistrates, Srinagar and Jammu have been declared as Special magistrates for trying the said cases. Reliance is placed

on SRO 277 dated 25.5.2008, whereby the State of Jammu and Kashmir in consultation with the High Court of Jammu and Kashmir, has

appointed Chief Judicial Magistrates Srinagar and Jammu as Special Magistrates for trial of cases under the Delhi Special Police Establishment

Act, 1946, clearly indicates that it is only Chief Judicial Magistrate Srinagar, who was competent to permit Rafique Ahmad to investigate the

matter.

There is no other ground urged by Mr. Qayoom regarding the merits of the case on the basis of which the charge has been framed.

The trial Court has, upon consideration of the material on record including the statements of witnesses and after hearing arguments, found that

there is sufficient grounds which prima facie exist against the petitioner for putting him to trial.

I find no force in these petitions, which are, accordingly, dismissed. Record be returned forthwith.