Abdul Hamid Mir vs State Of J&K And Another
2021 Latest Caselaw 932 j&K

                           HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                           AT JAMMU

                                                                        Reserved on:   17.08.2021
                                                                        Pronounced on: 23.08.2021


                                                                        CRMC No. 196/2009

           Abdul Hamid Mir                                              ...Appellant/Petitioner(s)


                                   Through :- Mr. Sunil Sethi, Sr. Advocate with
                                              Ms. Sonia Parihar, Advocate

                          v/s       <




           State of J&K and another                                            .....Respondent (s)
           't




                                   Through :- Mr. Raman Sharma, AAG


           Coram:              HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                                    JUDGMENT

1. The present petition has been filed by the petitioner for quashing

the order dated 24.11.2009 passed by the learned Special Judge, Anti-

Corruption, Jammu (hereinafter to be referred as trial court) in case titled "State

of J&K vs. Abdul Hamid" by virtue of which charges for commission of

offences under section 5(2) read with section 5(1) (d) of the Prevention of

Corruption Act, 420, 468, 471 RPC were framed against the petitioner on the

following grounds:-

(i) That the petitioner had pleaded before the trial court that his date of

birth was 27.03.1947 and he had not manipulated his date of birth as alleged in

the FIR and subsequently finalized in the charge-sheet. The petitioner after his

appointment in the Government service is not the custodian of his service book.

The service book was never kept in custody of the petitioner. Being a Gazetted

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officer, the service book of the petitioner right from his appointment was

maintained and kept under the custody of the drawing officer and the petitioner

could not have manipulated his date of birth as 27.03.1949. As per Article 264

of the Civil Service Regulations, 1956, service book of a Gazetted officer is to

be maintained by the office of Accountant General and in the foot note of the

first page of the service book, it has been indicated that the entries made in this

page of the service book should be verified at least once in five years and re-

written on page Nos. 8 and 9 but in the instant case, this important instruction

does not seem to have been complied with. The most important question arises

is as to what happened to the service book prepared initially at the time when the

petitioner was appointed as Assistant Surgeon in the year 1974 and joined the

service in the officer of Director Health Services Srinagar on 31.07.1974.

(ii) That no offence under section 420 RPC has been made out as the

petitioner cannot be said to have been induced any functionary of the

Government to enter into a transaction so as to deceive him with a view to cause

wrongful loss to him or wrongful gain to the petitioner.

(iii) That the petitioner has been wrongly charge-sheeted and charges

for commission of offence under section 468 RPC have been framed by the trial

court without appreciating the true spirit of the provision of the said section as

prosecution is obliged under law to show that a document has been forged as

contemplated in section 463 RPC. Likewise, no offence under section 471 RPC

is made out against the petitioner as there is no evidence to show that the

petitioner at any stage used the service book for getting any benefit.

(iv) That further offence under section 5(2) read with 5(1) (d) of P.C.

Act is also not made out against the petitioner as it is pre-requisite that for

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invoking of said sections, the accused must have used corrupt or illegal means or

otherwise abused his official position as public servant to obtain for himself or

for any other person valuable thing or pecuniary advantage. In the present case,

it was not the duty of the petitioner to prepare his service book as a Medical

Officer nor was this act related to his official duty as Medical Officer. Merely on

the ground that the entry at the first page was allegedly found in his hand

writing, is not sufficient to hold the petitioner guilty of the offences.

(v) That one of the prosecution witnesses namely Dr. B. A. Bhatti

initially admitted his signature on the first page of the service book as attesting

officer but in his statement recorded on 22.03.2008, he denied the same after

more than eight months of the recording of his statement just to give shape to

case and further it was the petitioner, who himself sent a statement containing

bio-data of gazetted officers of Block Mendhar on 23.07.1983 to the Deputy

Director, Health Services under his signatures in which he had disclosed his date

of birth as 27.03.1947. So, there was no material that the petitioner has furnished

his wrong date of birth.

2. Response stand filed by the respondents, in which it has been stated

that the learned trial court has passed the order impugned on the basis of

material available before it and there is no illegality in the order impugned.

3. Mr. Sunil Sethi, learned senior counsel has reiterated the grounds as

mentioned above.

4. Mr. Raman Sharma, learned AAG vehemently argued that it was

the petitioner who had prepared his service book after the service book in the

custody of Accountant General office was gutted in fire and while

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reconstructing the service book, the petitioner entered his date of birth as

27.03.1949 instead of 27.03.1947 and on the basis of said manipulated date of

birth, the petitioner over stayed in the government service for 23 months and

obtained undue gain/benefit.

5. Heard and perused the record including original service book.

6. The facts necessary for the disposal of the present petition are that

FIR bearing No. 19/2006 dated 21.08.2006 for commission of offences under

sections 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 420,

468, 471 RPC was registered against the petitioner after the verification of

source report alleging tampering of date of birth in the service record of the

petitioner and it was revealed that the petitioner tampered his date of birth in

order to confer undue benefit upon himself whereas his actual date of birth was

27.03.1947 and the petitioner by abusing his official position dishonestly and

knowingly manipulated his date of birth in the service record as 27.03.1949 and

continued illegally in the government service beyond his actual date of

retirement that was 31.03.2005. During the course of investigation, relevant

records pertaining to actual date of birth of the petitioner from the concerned

education institutions were obtained and it was found that the actual date of birth

of the petitioner is 27.03.1947. Needless to say, that the petitioner has not

disputed the factum of his date of birth as 27.03.1947.

7. Further perusal of service book reveals that the petitioner was

appointed as Assistant Surgeon vide order dated 21.06.1974 and has joined the

service in the office of Director Health Services Srinagar on 31.07.1974. The

original service book of the petitioner along with correspondence bearing

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admitted signatures of the then Block Medical Officer, Dr. B. A. Bhatti and

specimen handwriting of the petitioner were sent to Forensic Science

Laboratory, Jammu (FSL) for expert opinion. Investigation revealed that the first

page of the service book of the petitioner contained manipulated date of birth

incorporated as 27.03.1949 instead of 27.03.1947. Further, Dr. B. A. Bhatti, then

Block Medical Officer, Surankote has categorically refuted/denied the

authentication of the said date of birth made on the first page of the service book

of the petitioner. Further it was found during investigation that it was the

handiwork of the petitioner himself who always used to keep his service book in

his custody. During investigation, it was also found that the statement of

gazetted officers of PHC, Mendhar for the year 1983 submitted to the then

Deputy Director Health Service, Jammu by petitioner himself while posted as

Block Medical Officer, PHC, Mendhar, also substantiated the actual date of

birth of the petitioner as 27.03.1947 instead of wrongly incorporated date of

birth i.e. 27.03.1949. The FSL report has authenticated the questioned writing of

date of birth on the service book of the petitioner i.e. 27.03.1949 in words and

figures are written by the petitioner himself and not by any other person.

Further, FSL has also authenticated the signatures appended regarding

attestation of the date of birth entry in the service book of the petitioner as

forged one. The petitioner was due for his retirement in the month of March

2005 after completing the age of 58 years but the petitioner was retired in

February, 2007 forcibly by government on 14.02.2007 w.e.f. 31.03.2005 and in

this way, the petitioner has overstayed in service for a period of 23 months that

has caused loss to State exchequer of Rs. 8.00 lacs approximately. The

petitioner was furnished questionnaire to explain his position but he did not

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reply. After the completion of the investigation, the charge-sheet for commission

of above mentioned offences was filed against the petitioner and the learned trial

court vide order impugned has framed charges against the petitioner

8. While considering the issue of framing of charge/discharge of the

accused, the trial court has to form an opinion on the basis of material placed on

record by the Investigating Officer as to whether there is sufficient ground for

presuming that the accused has committed an offence or not and the material on

record would constitute the statement of witnesses along with other material

relied upon by the prosecution. At this stage, the trial court cannot indulge in

critical evolution of the evidence, that can be done at the time of final

appreciation of evidence after the conclusion of the trial.

9. The charge can be framed against the accused even when there is a

strong suspicion about the commission of offence by the accused and at the

same time, the learned trial court is not expected to merely act as a post office

and frame the charge just because challan for commission of a particular offence

has been filed against the accused. The learned trial court can sift the evidence

brought on record by the prosecution so as to find out whether the un-rebutted

evidence placed on record fulfils the ingredients of the offences or not. But at

the same time, the learned trial court cannot conduct a mini trial to find out as to

whether the accused can be convicted for a particular offence or not.

10. The Apex Court in Sajjan Kumar v. CBI reported in (2010) 9

SCC 368 after considering of its various pronouncements has culled out the

following principles of law:

"Exercise of jurisdiction under Sections 227 and 228 CrPC

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21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.

(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."

11. In State of Karnataka v. M. R. Hiremath, (2019) 7 SCC 515, the

Apex Court has held as under:

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"25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] , adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) "29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

12. Now, this Court would examine the order impugned on touchstone

of law mentioned above.

13. This is the admitted fact that the date of birth of the petitioner is

27.03.1947 and the petitioner overstayed in the government service on the basis

of false entry in the service book. It has come in the statement of the Dr. B. A.

Bhatti that he was directed to prepare record/service book of the gazetted

medical officers working under his control as service books with the Accountant

General office were gutted/destroyed in fire. So, the factum of original service

book lying with Accountant General Office was gutted in the fire is evident.

14. The first contention raised by the petitioner is that the petitioner has

never been the custodian of his service book and he could not have tampered the

same, otherwise the record in the form of seizure memo dated 23.09.2006 that

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demonstrates that the original service book of the petitioner was produced

before the Investigating Officer by the petitioner himself so the custody of the

service book remained with the petitioner. The statement of PW-1 namely Peter

clearly reveals that service book of the petitioner was lying in personal custody

of the petitioner. On his transfer/joining in the hospital once the service book

was handed over to him for transfer entry and after doing the needful, the same

was taken over by the petitioner. Further, FSL report clearly demonstrates that

date of birth as mentioned in the first page of the service book seized by

Investigating Officer from the petitioner himself is in handwriting of the

petitioner. So, there is not even an iota of doubt that it was the petitioner who

entered wrong date of birth in the first page of service book on the basis of

which he continued to remain in the service beyond the permissible period. So,

this contention deserved to be rejected.

15. The second contention raised by the petitioner is with regard to the

applicability of section 420 RPC. Needless to say, once the petitioner on the

basis of manipulated date of birth has remained in the service and has drawn the

salary to the extent of Rs. 8.00 lacs, so it cannot be said that there was no

deception on the part of the petitioner and consequent delivery of the property.

The essentials of offence of cheating are there in the allegations. The allegations

are with regard to the deception on part of the petitioner to remain in service

beyond permissible limit on the basis of false entry in the service book and

drawing the salary for himself which he otherwise was not entitled to. So, this

contention too is without any force.

16. Thirdly, it was submitted that allegations with regard to the

commission of offences under section 468 and 471 RPC are not made out. There

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is evidence on record that the authentication made by Dr. B.A. Bhatti on the first

page of the service book of the petitioner is not in his handwriting. So, first page

of the service book/document falls within the category of forged document and

the said document was found to be in possession of the petitioner and the

petitioner used the said document for drawing remuneration for which he was

never entitled to. So, this contention also deserves to be rejected.

17. The fourth contention raised by the petitioner is that allegation with

regard to the commission of offence under section 5(2) read with section 5(1)(d)

of the Prevention of Corruption Act is not made out against the petitioner also

deserves to be rejected because of the reason that the petitioner could not have

obtained custody of the service book without being a public servant and he has

abused his official position by manipulating the date of birth on his service

record and by retaining the service record with himself and thereafter getting the

undue benefit on the basis of wrong entry made by the petitioner himself in the

service book.

18. The last contention is with regard to the admissibility of the

statement of the Dr. B. A. Bhatti. Needless to mention here that while

considering issue of charge and discharge, the trial court is not required to

critically evaluate the evidence as the same is required to be done during the

course of trial as has been settled by Apex Court in the judgments(supra). So,

this contention too has no force and is, accordingly rejected.

19. I have perused the order impugned. Learned trial court has framed

charges on the basis of material available on record and after considering the

material placed on record has formed an opinion that there is prima facie case

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against the petitioner for the commission of above mentioned offences. There is

no infirmity or illegality in the order impugned.

20. In view of this, the impugned order is upheld. The petition is found

to be without merit and the same is, accordingly, dismissed.

21. Record summoned be sent back to the trial court immediately.

(RAJNESH OSWAL) JUDGE JAMMU:

           23.08.2021
           Neha
                                                  Whether the order is speaking:        Yes/No
                                                  Whether the order is reportable:      Yes/No




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