Syed Mohammad Yousuf vs State and Others

Syed Bashir-ud-din, J.—Petitioner along with many other persons is booked in FIR No. 88/95 under Sections 420, 468, 471, 120B RPC

read with Section 5(2) of Prevention of Corruption Act, on incriminating allegations that the accuse including the petitioner conspired and brought

about spurious and fraudulent orders in the name of the Government appointing large number of people fictitiously as teachers in education

department in various districts of the State. Petitioner pleaded innocent and not involved in any manner in the scam and fraudulent appointments &

prayed for bail in anticipation of arrest in the motion before the Court of Anti-corruption. However, the learned Special Judge, Anti Corruption

Kashmir rejected the application by its order dated 23.11. 2002. This order is impugned in revisional jurisdiction before this court. The revision

petitioner/accused's counsel submits that the accused has been earlier granted bail in this FIR by Munsiff Judicial Magistrate Dooru, therefore, his

anticipatory bail could not have been refused. The petitioner at the relevant time was working as Supervisor in Adult Education cluster, Yaripora.

The Petitioner can in no way be connected with the commission of the crime as alleged. The trial court has not considered the report of the crime

branch in proper context when nothing specific is stated against him. The petitioner could not be expected to have played a roll in passing the

fraudulent order. The Crime branch has no authority to register FIR in a criminal case in an corruption matters, when the legal provisions

exclusively reserved such course for Anti corruption/Vigilance organisation.

The learned Additional Advocate General, Mr. Rathore has defended the impugned order. His submission is that the accused has not been

given bail for any offence under the J&K Prevention of Corruption Act or under any other offence of Ranbir Penal Code form a conspiracy angle.

The trial Judge has appreciated the matter and passed a detailed order. It is not necessary that petitioner should have been posted in education

Department though, Adult Education Department is a wing of the Education department, when allegations of conspiracy in a scam and issuance of

fraudulent orders are alleged. Sessions Judge has considered in full the report of the Crime Branch and then rejected the bail. The Crime branch

has jurisdiction to register a case even for offence under Prevention of Corruption Act against any Officer/Official of the State Government. On the

subject Crime Branch as also the Vigilance Organisation have concurrent jurisdiction and both do act in this field. Under SRO 229 of 1976, and

SRO 202 of 1999 both Anticorruption Organisation and Crime Branch or Police station have powers and authority within their respective

jurisdiction to register and investigate cases under Prevention of Corruption Act and in respect of connected offences under RPC.

The operation and exercise of powers under statutory rules orders cannot be restricted by a circular direction of some officer/official of the

police department or Crime Branch. The raised question of jurisdiction is not based on facts and law.

It is not denied on either side that petitioner accused is name and wanted as one of the accused in FIR No. 88/95 for offences under sections

420, 471, 468, 120B RPC read with Section 5(2) of Prevention of Corruption Act. The grave allegations against the accused and others are

under investigation. Accused as a part of criminal conspiracy is named in the scam of issuance of fraudulent/fictitious appointment orders of

minimum 58 persons and the Investigating Agency has shown that the arrest of the accused is required for purposes of investigation. The accused

has been granted bail by Munsiff Judicial Magistrate, Dooru as Duty Magistrate for the offences 409/420/468 RPC in FIR No. 88/95 of Police

Station Crime Branch, Srinagar. Accused at no stage has been given bail either for offences u/s 471 or 120B RPC. He is not also given bail for

offence u/s 5(2) of P.C. Act. These offence with which accused is charged in the FIR 88/95 (ibid) are not covered by any bail order.

The Special Judge, Anti Corruption has considered the detailed report of the Crime Branch/Investigating Agency and also objections filed in this

case. He has no application of mind not found it a fit case where anticipatory bail can be given to the accused. The contention that Crime Branch

cannot register any investigate the case under the Prevention of Corruption Act, appears not well placed.

Because petitioner's appointment is Supervisor in Adult Education cluster, Yaripora, that by itself, in he facts and circumstances of the case, is

not a ground to conclude that the petitioner is not involved in the crime, more so when criminal conspiracy angel is added to the case.

The Special Judge has came to the conclusion that there are incriminating allegations and some material to support the Investigating Agency that

accused's complicity in the crime as conspirator cannot be excluded. The petitioner has played a roll in issuing false and fictitious appointment

orders and in preparation of false and fictitious service books. Giving bail to the accused would create hurdle in investigation and would not serve

the public interests.

In the above circumstances, exercise of discretion by the Special judge, Ant Corruption declining to grant bail in anticipation of arrest cannot be

said to be incorrect or improper. The order passed is within confines of jurisdiction and does not seen legally infirm.

In the above view of the matter, the revision is dismissed and interim direction issued from time to time is vacated. The accused is free to seek

regular bail under the provisions of criminal procedure code on compliance with due procedure as established under law.