Bashir Ahmed Malik vs C.B.I Jammu
2021 Latest Caselaw 813 j&K

                                                                     Suppl-1 List
                                                                      S. No. J1


     THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                                Pronounced on : 04.08.2021

                                                 CRR No. 35/2016
                                                 IA No. 01/2016
                                                 I




Bashir Ahmed Malik                                        ......Petitioner
                       Through :- Mr. Sunil Sethi, Sr. Advocate with
                                   Assisting Counsel.
                                    v/s

C.B.I Jammu                                               ......Respondent

                       Through :- Ms. Monika Kohli, Advocate.


Coram:      HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
::: :                              JUDGMENT

1. The petitioner stands charged for offences under Sections 420/468/471

RPC in the challan presented by the respondent against the petitioner

herein. It is suffice to mention that the FIR No. 31/2011 came to be

registered with Police Station, Crime Branch, Srinagar but later on the

case was transferred to the C.B.I. It is submitted that the investigation

did not prove any case against the petitioner and a closure report was

presented before the Court of learned Special Judge, Anti-Corruption,

(CBI Cases), Jammu. However, the court directed the reinvestigation

of the case. This direction of reinvestigation came to be challenged by

way of revision and this court directed further investigation in the

matter instead of reinvestigation as directed by the Special Judge, Anti

Corruption. The further investigation resulted into filing of challan

against the petitioner herein. It appears that as no case under P.C.Act

was established against the petitioner herein. Later the court of learned

Second Additional Sessions Judge, Jammu framed the charges against

the accused and the case was sent to the court of C.J.M, Jammu as the

offences were not exclusively triable by the court of Sessions. Indeed,

there is no dispute with regard to the aforesaid facts. The petitioner-

accused is aggrieved of the presentation of challan as well as charges

framed against the accused on the grounds mentioned in the petition.

2. Before proceeding further in the matter, it is pertinent to mention

herein that the petitioner was an employee of J&K Civil Secretariat

and was posted as P.A. to Jeet Lal Gupta, then Special Secretary Home

Department at the relevant point of time. The allegation, in substance,

against the petitioner is that some arms licenses were issued by him

with forged writing and the said licenses noted that jurisdiction of the

licenses was extended to all India. The writing on the licenses was not

of the complainant Jeet Lal Gupta. The petitioner was dealing with the

files pertaining to the arms licenses at the relevant point of time.

3. Mr. Sunil Sethi, learned Senior counsel appearing for the petitioner-

accused, has made detailed submissions in the matter which stand

rebutted by the learned counsel for the respondent.

4. The first argument raised by the learned senior counsel for the

petitioner is that there is no substance in the challan produced against

the petitioner as the investigation in the first instance resulted into

closure of the same and the further investigation which later took place

in the case did not for all practical purposes revealed complicity of the

accused in the commission of any offence. The FSL report also did not

bring out the factum of the alleged signatures/writings on the licenses

issued were of the petitioner nor is there any other connecting evidence

against the accused.

5. Ms. Monika Kohli, learned counsel for the respondent, has argued that

the facts and circumstances which emerged from the investigation

make out a case against the petitioner. It is not disputed during the

course of arguments that even the second FSL report could not connect

the writing in the licenses with the petitioner.

6. The perusal of the challan reveals that amongst other it was also

established during the course of investigation that 10 arms licenses

which are mainly in picture extending jurisdiction of the licenses all

over India are not entered in the register maintained in the P.A. Section

which was being controlled by the petitioner herein at the relevant

point of time and the statements of some of the witnesses recorded

during the course of investigation pertaining to the writing in question

speaks of complicity of the accused in the matter. It is not just the FSL

report which could be the mainstay in the case of present nature but the

other circumstances which have emerged during the course of

investigation. The learned court while framing the charges against the

accused has satisfied itself that prima facie sufficient grounds exist for

presuming commission of the offence by the petitioner herein. The

court has further held that the test which is required to be applied at the

stage of framing of charge is somewhat different as to what is to be

applied at the final stage of the trial. The court does not find any reason

to disagree with the order dated 22.01.2016 on the basis of which the

charges have been framed against the accused. The argument raised on

behalf of the petitioner that the first investigation resulted into closure

of the case against him and the further investigation also failed to bring

any further evidence against the accused and therefore there is no

substance in the challan. The court cannot agree with the submission of

the learned counsel as the overall circumstances appearing during

investigations have found the accused having committed the offences.

7. The other argument raised by the learned senior counsel for the

petitioner is that the provisions of Section 197 Cr.P.C stand attracted in

the present case assuming for the sake of argument that the petitioner

had done some unlawful act. As the petitioner is alleged to have

committed wrong during discharge of his official duties, therefore, the

case could not proceed against the accused without proper sanction.

8. The learned counsel appearing for the respondent, on the other hand,

has submitted that the criminal act attributed to the petitioner did not

call for previous sanction of the concerned authority.

9. The learned court while framing the charges has taken note of this

submission of the petitioner and has held that the deeds and acts

attributed to the accused cannot be said to be part of official duties

which were required to be performed by the accused and, therefore, is

not entitled to protection of Section 197 Cr.P.C in respect of such acts.

The public servant while discharging his official duties is not expected

to be part of those acts which are attributed to the accused. Every act

herein purportedly done by the accused cannot be said to be in

discharge of his official functions. Every act cannot fall within the

zone of discharge of official duty so as to provide immunity to the

petitioner as envisaged under Section 197 Cr.P.C. The Court does not

find any reason, prima facie, to agree with the submission of the

learned counsel for the petitioner on the issue under consideration.

10. Last but not the least the learned senior counsel appearing for the

petitioner has submitted that the formal charge is not properly framed

against the accused as it does not reflect the precise allegations for

which he is to face trial. The Court is of the view that so far as this

submission of the counsel is concerned, the petitioner can move the

trial for re-framing the charges. There is no impediment for the said

court to again frame the formal charges specifying the allegations

against the petitioner-accused herein.

11. Learned senior counsel for the petitioner has submitted that as more

than two decades have already passed when the alleged acts and

omissions of the petitioner came to be committed by him and no

concrete shape could be given to the proceedings initiated against him

for a long time, therefore, the same can be ground for quashing the

challan and the subsequent proceedings that have taken place in the

matter. The court does not agree with the submission of the learned

senior counsel as the same is not tenable in the present case. Merely

because the challan could not be produced in the court of law against

the accused for one reason or another does not mean that the criminal

proceedings should be allowed to be quashed on that score. Indeed the

allegations against the accused are quite serious in nature as is revealed

in the present case.

12. The Court, in the facts and circumstances of the case, does not find any

reason to exercise its inherent jurisdiction to quash the challan and set

aside the proceedings initiated on the same including the order

whereby the charges have been framed against the accused. The

petition is, accordingly, dismissed.

(Puneet Gupta) Judge Jammu 04.08.2021 Pawan Chopra

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

PAWAN CHOPRA 2021.08.05 10:18 I attest to the accuracy and integrity of this document