Shahid Hussain Wani vs State of J&K

Mr. Tashi Rabstan, J. - Petitioners through medium of instant petitions under Section 561-A Cr. P.C., seek quashment of order dated 3rd

September 2015 passed by Special Judge (Anti-corruption), Pulwama on applications filed by petitioners for release of their respective bank

accounts operated by them in J&K Bank Branch Unit Awantipora, on grounds set out in the petitions.

Reply in opposition to petitions has been filed by respondents, and they seek dismissal of both petitions.

Heard learned counsel for parties and considered the matter.

Learned counsel for petitioners state that after the charge sheet was filed before the court below petitioners' complicity was not established and

even they have not been arraigned amongst accused persons in the charge-sheet. Learned counsel further states that the investigation of the case is

complete and charge sheet has been filed before the court below and there is not even a single narration qua bank transactions of petitioners, as

such, they were not arraigned as accused persons and that petitioners have unnecessarily suffered in consequence of seizure of their bank accounts

for pretty long time. He also contends that in view of completion of investigation and charge against the accused persons, the seized money cannot

be held and that petitioners have every right to utilise such money and operate bank accounts for business purpose.

It would be appropriate to have a glance of impugned order which will throw light on the subject matter projected and raised by petitioners

before this Court in petitions on hand. The case before the learned Special Judge (Anticorruption), Pulwama, relates to misappropriation of amount

of over Rupees Twenty Crores, meant for disbursement amongst the eligible beneficiaries (land owners) of four lane National Highway in village

Lethpora and adjacent villages and for that matter fake accounts appeared to have been opened in J&K Bank Limited Awantipora, to make

fraudulent drawls by resorting to manipulation of records through dubious means. This resulted in lodgement of FIR No. 174/2010, under Sections

409, 467, 471, 420, 120-B RPC P/S Awantipora. However, the matter was referred to Vigilance Organisation for thorough investigation, and

FIR No. 37/2010 u/s 5(1) (c), 5(1) (d), 5(2), J&K P.C. Act, 2006, read with 120-B, 409, 468, 471 RPC P/S VOK, lodged. The investigation

of the case was concluded as proved against 75 accused persons and sanction for launching prosecution against in-service accused persons was

given by the Government. The Final Report (Challan) was produced before the court of Special Judge (Anticorruption) Pulwama, on 28th April

2015 and 29th June 2015.

It appears that petitioners' accounts that they operate in J&K Bank Awantipora, during course of investigation, have been frozen. Petitioners

moved applications before court below seeking defreezing thereof. However, they could not succeed in their applications as the applications have

been dismissed vide order impugned.

The Order impugned passed by the court below as also reply filed by respondents reveal that during investigation, accused Mohammad

Maqbool Wani had transferred Rs. 10.00 lacs to the Account No. CC-123 (J&K Bank Awantipora) of his brother Riyaz Ahmad Wani (petitioner

herein) and also like amount to Account No. CD-1098 (J&K Bank Awantipora) of his cousin Shahid Ahmad Wani (petitioner herein ) out of the

embezzled amount, on the same day. It also reveals that out of Rs. 10.00 Lacs each, transferred to the accounts of present petitioners, only Rs.

3,86,963/- and 9,44,364/- was frozen as petitioners had withdrawn the remaining amount from the accounts. The Court below while disallowing

the applications has observed that the money frozen in petitioners' accounts has been directly found to be part of the embezzled amount and hence

cannot be allowed to be released. It would be appropriate to reproduce relevant portion(s) of order impugned hereunder:

It is apt to point out that the applicants have earlier failed on occasions to seek release of their accounts because their applications stand rejected

by the court of id. Special Judge Anti-corruption, Srinagar as well as this court. Notwithstanding the fact that charge sheet stands filed and

observations made in order by this court that investigation is in progress and release of accounts would have direct impact on the investigation,

though that stage has crossed, but the question which assumes significance and is of great importance whether mere filing of charge sheet would

entitle the petitioner to seek release of their accounts or not. Admittedly, petitioners were not arraigned as accused by the I.O. because not direct

evidence against them was established with the main accused but the evidence on record collected by Investigating Agency suggests that

petitioners had received the transactions of money from their brother and cousin Mohammad Maqbool Wani and I.O. had been successful to

establish the link that money frozen in accounts of the petitioners has been directly found to be part of embezzled amount The fact that money

deposited in the accounts of the petitioners which stand seized whether actually belongs to the petitioners or are part of the embezzled amount as

per insertion [assertion] of the Id. Counsel for the petitioners, can only be established during trial and at this juncture the release of the accounts

would be against the interests of prosecution as well as ends of justice would be defeated because tainted money if proved is subject to

confiscation it might be the embezzled amount and petitioners involvement or shielding and screening the embezzled amount cannot be ruled out.

From the above quoted portion(s) of court below order, impugned herein, it becomes clear that the court below has minutely addressed all aspects

of the matter relating to the subject matter. Court below, attentive to the pros and cons of the case, has rightly observed that needle of suspicion

pinpoints towards petitioners and petitioners' involvement or shielding and screening the embezzled amount, cannot be ruled out.

It may not be out of place to mention here that court below, having regard to the case, its gravity as also that if during trial, evidence indicates

involvement of any person or persons, including present petitioners, though not accused, can very well array them as accused persons. Regard in

this respect may be had to the judgement rendered in Amar Nath v. State & Ors., reported in 2007 (2) JKJ 317 [HC].

The Supreme Court recently in a judgement dated 30th March 2016 rendered in Criminal Appeal No. 186 of 2016, titled Hardei v.

State of U.P., has held that choice of Police not to send up a suspect to face trial does not affect power of the Trial Court to summon such a

person on account of evidence recorded during trial. The Apex Court dismissed the appeal against High Court order, refusing to set aside the

order of Chief Judicial Magistrate, summoning a 'suspect', in exercise of power under Section 319, Code of Criminal Procedure, to face trial in

Sessions Trial. One of the contention on behalf of the summoned person was that he was not named as an accused in the FIR nor any charge-

sheet was submitted against her after completion of investigation. Rejecting the said contention, the Supreme Court observed that F.I.R. may not

contain all the details of the occurrence; or even the names of all the accused and it is not expected to be an encyclopedia even of facts already

known. The Court further held:

Having given our anxious consideration to the rival submissions, we find no good reason to interfere with the order under appeal.

It is well accepted in criminal jurisprudence that F.I.R. may not contain all the details of the occurrence or even the names of all the accused. It is

not expected to be an encyclopedia even of facts already known. There are varieties of crimes and by their very nature, details of some crimes can

be unfolded only by a detailed and expert investigation. This is more true in crimes involving conspiracy, economic offences or cases not founded

on eye witness accounts. The fact that Police chose not to send up a suspect to face trial does not affect power of the trial court under Section 319

of the Cr. P.C. to summon such a person on account of evidence recorded during trial....

Having quoted above observation, it would be appropriate to say that the Trial Court in the present case is clothed with powers to summon the

present petitioners to face the trial given the seriousness of the matter. In such circumstances, the Trial Court has rightly rejected the applications of

petitioners for release of accounts and seized amount considering the gravity and seriousness of the case.

Aside the above discussion, it is well settled that inherent powers under Section 561-A Cr. P.C. because of their plenitude, are to be exercised

rarely, sparingly and with due circumspection. The Court in view of exercise of powers under Section 561-A Cr. P.C. is not expected to hijack

trial proceedings pending before Trial Court and assume its role to sift evidence and find out whether trial should proceed. It is only to prevent

abuse of process of court and prevent miscarriage of justice that inherent powers are to be exercised.

The Apex Court in case State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604, has observed that the powers under Section 561-A

Cr.P.C. should be exercised very sparingly and with circumspection and that too in rarest of rare cases. It would be relevant to reproduce

paragraph 109 thereof here:

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do,not confer an

arbitrary jurisdiction on the Court to act according to its whim or caprice.

The Apex Court in Padal Venkata Rama Reddy v. Kovvuri Satyanarayana Reddy, (2011) 12 SCC 437, while relying on the case of

Ch. Bhajan Lal (supra), has held:

..When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the

evidence in question is reliable or not or whether on reasonable appreciation of it accusation would not be sustained. That is the function of the trial

Judge. The scope of exercise of power under Section 482 and the categories of cases where the High Court may exercise its power under it

relating to cognisable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in detail in Bhajan

Lal (supra). The powers possessed by the High Court under Section 482 are very wide and at the same time the power requires great caution in

its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should

not be exercised to stifle a legitimate prosecution.

The inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It is only where the

High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused

or that the ends of justice would not be secured, that the High Court can and must exercise its inherent powers under Section 561-A of the Code.

This power can be invoked only in an event when the aggrieved party is being unnecessarily harassed and has no other remedy open to it. The

power under Section 561-A Cr. P.C., is not intended to scuttle justice at the threshold but to secure justice.

In the present case, during investigation it came to fore that one of the accused, namely Mohammad Maqbool Wani, transferred Rs. 20.00

Lacs (Rs. 10.00 Lacs each account) to the Account No. CC-123 of his brother, namely Riyaz Ahmad Wani (petitioner) and No. CD-1098 of his

cousin, namely Shahid Ahmad Wani (petitioner), out of the embezzled amount on the same day. In the reply filed in opposition to petitions on

hand, the respondents, after giving comprehensive details of the events and sequences relating to the subject matter of the case, aver that given the

trail of money transfers it was proved during investigation that the amount transferred to the petitioners' accounts was actually embezzled from the

official accounts of the Collector, Land Acquisition, Pulwama, and hence belonged to the State and formed subject matter of the case FIR No.

174/2010 P/S Awantipora and FIR No. 37/2010 P/S VOK. The petitioners' accounts, in view of embezzled amount transferred to their accounts,

were frozen.

Having taken into consideration what has been discussed above, it would be appropriate at this stage to say that once it came to limelight during

investigation that the amount transferred to the petitioners' account is embezzled amount, the accounts could not be permitted to be operated or the

seized amount released, for it will come to surface during the course of trial whether the amount transferred to the accounts of petitioners is

embezzled amount or not. This Court cannot sit as and assume the role of, court below and sift the evidence and find out whether the amount,

stated to have been transferred to the accounts of the petitioners, is embezzled amount or not. Such exercise can very well be undertaken by court

below during course of trial, if it comes to fore that the amount transferred to the accounts of petitioners is or is not the embezzled amount. It would

be earlier in the day to draw conclusions as to the amount transferred to the petitioners' accounts being embezzled or non-embezzled amount.

From the above discussion, the fact that money deposited in the accounts of the petitioners, which stand seized whether actually belongs to the

petitioners or is part of the embezzled amount, can very well he seen, observed and ascertained during trial and at this juncture the operation of the

accounts and release of the amount would be against the interests of prosecution as well as ends of justice would be defeated.

The case projected by petitioners to seek quashment of order impugned, as is evident from above discussion, does not satisfy the requirement

of Section 561-A Cr. P.C., the law on the subject and the case law cited herein above.

So viewed, the petitions on hand do not call for exercise of inherent powers under Section 561-A Cr. P.C. and, are, accordingly, dismissed

along with connected MP (s). Trial Court shall not be influenced by any of the observations made here in deciding the matter on its own merits.