Sonaullah Wani vs State Of J&K

Sanjay Dhar, J

1) The petitioner has challenged order dated 17.03.2016, passed by learned Special Judge, Anticorruption, Pulwama, whereby application of the petitioner for producing original authentication certificate issued by the Jammu & Kashmir State Board of School Education, has been rejected.

2) Before coming to the instant petition, it would be profitable to give a brief background of the facts leading to the filing of the instant petition.

3) Perusal of the trial court record reveals that the petitioner has been charged for offences under Section 5(1)(d) read with Section 5(2) of Prevention of Corruption Act, 2006 and Section 420, 467, 120-B RPC. As per the prosecution case, the date of birth of the petitioner/accused is 8th June, 1940 but he has tampered with the same and made it as 8th June, 1945, thereby overstaying in the service beyond the age of superannuation by 21 months and drawn a salary of Rs.2,62,760/.

4) It appears that the prosecution evidence has already been closed whereafter statement of the petitioner/accused under Section 342 of Cr. P.C has also been recorded. It also appears that the defence evidence has been recorded and at the time when the case was set down for final hearing, the petitioner filed an application seeking permission to place on record authentication certificate purported to have been issued by the J&K State Board of School Education, wherein it is indicated that the date of birth of the petitioner is 08.06.1945.

5) The learned trial court has rejected the aforesaid application of the petitioner on the ground that the certificate produced by the petitioner appears to be manipulated as the prosecution has already led evidence to established the date of birth of the petitioner as 8th June, 1940.

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

7) It has been contended by learned counsel for the petitioner that the verification certificate is essential to the decision of the case and that the impugned order passed by the trial court declining the application of the petitioner has caused grave prejudice to the case of the defence. The learned counsel has also argued that while deciding the application, the learned Special Judge has made an observation that the prosecution has succeeded in proving that the date of birth of the petitioner is 8th June, 1940 and that such an observation could not have been made by the learned Special Judge prior to deciding the case finally.

8) Upon having a meticulous perusal of the record of the trial court, it is revealed that the petitioner/accused has at no stage of the proceedings claimed that he was born on 08.06.1945, regarding which he seeks to produce the verification certificate. He has neither taken this defence in his statement recorded under Section 342 of Cr. P. C nor has he taken this defence during cross-examination of the prosecution witnesses. The Joint Director of the J&K Board of School Education, who has been examined as a prosecution witness, has not even been confronted with the suggestion in this regard by the defence.

9) In the evidence led by the defence, no claim has been made by the petitioner/accused that his date of birth is 08.06.1945. In fact, in his statement recorded under Section 342 of Cr. P. C, the petitioner/accused has claimed that it is a case of confusion created by the department because in some seniority lists his year of birth has been shown as 1940 whereas in some seniority lists, his year of birth has been shown as 1945 and in some other seniority lists, it has been shown as 1948. He has gone on to claim that someone has made insertions in the certificate of birth and the service record to falsely implicate him in the case. In this regard, he has quoted the statement of PW-Mohammad Younis Bhat, who has stated that someone has made insertions in the matriculation certificate of the petitioner by changing the words/figures “40” into “45”.

10) Thus, the positive case of the petitioner throughout has been that he has been implicated falsely as somebody has made insertions in his matriculation certificate which led to recording of his date of birth in the service book. When such a defence has been taken by the petitioner, it is not open to him to rely on a document which, according to him, shows his date of birth as 08.06.1945. The petitioner/accused cannot take contradictory stands as regards his defence before the trial court. Therefore, the learned trial court has rightly declined the prayer of the petitioner to take on record the authentication certificate. The reasoning adopted by the learned trial court in rejecting the application may not be convincing but the conclusion is certainly right one.

11) For the foregoing reasons, the petition lacks merit and the same is, accordingly, dismissed.

12) So far as the prayer of the petitioner for release of service book is concerned, it shall be open to the petitioner to approach the trial court by way of a proper application and in case such an application is made, the trial court shall consider and decide the same on its own merits.

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