Rajinder Koul & Ors vs Director Vok(Acb) Kashmir & Anr
2023 Latest Caselaw 352 j&K

                                                                        Sr. No.



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         ATJAMMU

                                                 TrP (Crl) No. 18/2022
                                                 CrlM Nos. 1084 & 1085/2022

                                                 Reserved on: 15.02.2023
                                                 Pronounced on:23.02.2023

Rajinder Koul & Ors.                                              .....Petitioner(s)

                                Through :- Mr. S. K. Bhat, Advocate

                         v/s

Director VOK(ACB) Kashmir & Anr.                                .....Respondent(s)

                               Through :- Ms. Monika Kohli, Sr. AAG

CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE

                                 JUDGMENT

1. Petitioners through the medium of this Criminal Transfer Application,

seeks transfer of the criminal case/Charge-sheet No. 171/B, arising out of

FIR No.43/2000 registered at Police Station Vigilance Organization

Kashmir (VOK), for the commission of offences punishable under sections

5(2) of J&K PC Act and 420, 120-B and 201 of RPC, pending before the

Court of Special Judge Anti-Corruption Baramulla to the Court of Special

Judge Anti-Corruption Jammu.

2. Petitioners/accused pleaded following facts:-

a) That the FIR No. 43/2000 was registered by the VOK Srinagar

(Kashmir) on a written complaint received from the Principal Secretary

to Government, Industries and Commerce, J&K, Srinagar alleging

therein that exorbitant rent of Rs.43 lacs has been drawn and disbursed

in favour of accused No. 1, namely, Gh. Mohd. Khan (since expired) by

the accused Nos. 2 to 4 which includes all the three petitioners, in

respect of Industrial units/residential accommodation of Soura Group of

Industries, situated at Btergam Kupwara which remained under the

occupation of security forces from the year 1989 to 1996, i.e during the

peak militancy, owned by accused No.1, Late Gh. Mohd. Khan and the

said amount had been released in favour of accused No. 1, who is the

actual beneficiary. After completion of investigation, final report under

section 173 of J&K CrPC was filed against the accused persons which

includes all the three petitioners.

b) That petitioner No. 1 has been shown in the list of prosecution witness

at serial No. 57 and on the contrary he is also prosecuted and shown as

accused No. 3 in the charge-sheet, this shows how biased Investigating

Officer and Supervisory Officers i.e. respondent Nos. 1 and 2 were

against the accused/petitioner No.1-Rajinder Koul from the beginning.

As per law, the witness cannot be given status of an accused and his

statement recorded by I.O under section 161 CrPC is a valid piece of

evidence against the accused persons who have committed the offence,

if any. Even learned Special Judge Anti-Corruption Baramulla, ignored

this submission till date when the documents speak itself.

c) That FIR has been registered under sections 420, 463 and 468 RPC and

5(1), 9(d) of the PC Act 2006 but none of the accused has been

prosecuted under sections 467 and 468 RPC, therefore it is clear that no

rent has been processed, sanctioned and paid to the beneficiary late Gh.

Mohd. Khan (A-1) on the basis of any forged document. Sanction for

prosecution has also not been obtained against petitioner Nos. 1 and 2

under sections 467 and 468 RPC, which shows that the filing of charge-

sheet against the accused does not show any direct or indirect

involvement of accused Nos. 2 to 4 i.e petitioners No. 1 to 3.

d) That DySP (VOK) has submitted a written report before the learned

Special Judge, Anti-Corruption Baramulla, through the then Special PP

of ACB representing the case and the said report dated 25.05.2016

clearly mentioned that the excess amount of Rs. 40,86,714/- has been

paid to the beneficiary i.e. A-1 who is now dead and after receiving such

report in 2016 till date learned Special Judge Anti-Corruption

Baramulla, did not hear the case on charge and the vital arguments of

defence counsel for the petitioners were ignored mostly of petitioner

No.1 as to how he has been shown as prosecution witness as well as

accused in the charge-sheet.

e) That the VOK through SSP Srinagar Kashmir assailed the order dated

16.04.2012 passed by learned Special Judge (AC) Baramulla before the

High Court of J&K at Srinagar by filing 561-A CrPC petition in which

High Court vide its order dated 12.06.2014 has directed to file charge-

sheet after completion of further Investigation as early as possible.

f) That two supplementary charge-sheets were thereafter filed and learned

Special Judge (AC) Baramulla vide its order dated 15.06.2017 at page

24 para (iii) has again directed VOK to further investigate the matter

and that order was assailed by VOK by filing 561-A CrPC petition.

g) That petitioners are Hindus and besides this petitioner No.1 is a

Kashmiri Migrant Pandit, most of the people and originally resident of

Sopore, Baramulla known to him, therefore, cannot put his life at risk,

considering the rampant target killings of outside Hindus, Kashmiri

Pandits and innocent Police officials. The Government of J&K (UT) is

unable to provide protection to the Prime Minister Package employees,

therefore, at the risk of their life, it will not be justified and is against the

humanity and justice, if the petitioners attend the court of Special Judge

Anti-Corruption Baramulla at the cost of their life; that when the fear of

threat to life is evident, the fair trial and fair justice is not possible,

therefore petitioners have a good case to seek the indulgence of this

Court regarding transfer of the case pending trial before Special Judge

Anti-Corruption for its transfer to the court of Special Judge Anti-

Corruption Jammu, in order to save their life and innocent families of

the petitioners.

3. Learned counsel for the respondents, instead of filing reply, despite several

opportunities granted, has orally opposed the petition on the ground that the

instant case is registered in P/S VOK upon record received from Home

Department J&K, the perusal of which revealed that with the connivance of

various officers/officials at different level in administration, Gh.

Mohammad Khan Proprietor of Soura Group of Industries has by

presenting and processing fictitious claims of rent/compensation with

regard to seven industrial units and residential accommodation namely,

Universal Alloys, Pioneer Steels, Bharat Metal Industries, Kupwara Valley

Steel Industries, Soura Marble Industries Pvt. Ltd, Kamra Steels and

Minerals located at Kupwara succeeded in defrauding the State exchequer

to the tune of several millions of rupees, when actually he was entitled to a

meager amount only. The material, so received from the Government in

this connection indicates that a committee constituted in this connection

found that none of the industrial units was ever under occupation of BSF or

any other security agency and that one building consisting of one room two

bath looms, a gallery and a veranda were only under the occupation of BSF

from October 1989 to June 1999, besides a Chowkidar Hut consisting of

three rooms was under the said occupation from 9/96 to 9/98. The records

reveal that with the connivance of the officials in the Home Department an

amount of Rs.43.18 lacs was sanctioned by abuse of official position

without ascertaining the genuineness of claim and without making proper

calculations of the rent dues and thus a huge pecuniary advantage was

conferred on Gh. Mohammad Khan and loss of a huge amount was caused

to the State exchequer and during investigation, a prima facie case has been

made out against the accused/petitioners. After completion of investigation,

the charge sheet was filed before the competent court of law and same is

pending before the court of learned Special Judge Anti-Corruption

Baramulla, thus it was prayed that the application seeking transfer of the

charge-sheet be dismissed with exemplary costs.

4. Mr. S. K. Bhat, learned counsel for the petitioners argued that it is difficult

for the petitioners who are senior citizens to commute from Jammu to

Srinagar for attending proceedings of the criminal case filed against them

by the respondents at Srinagar especially when they have threat perception

from the terrorists, therefore, they cannot put their lives at risk considering

the rampant target killings of outside Hindus, Kashmiri Pandits and

innocent Police officials. It has been further argued that this Court has

already allowed many cases on this ground bearing CRTA No. 19/2005

titled "Chandan Mitra & Anr. Vs Gulam Nabi Shaida" and TrP(C) No.

34/2019 titled "Daily Excelsior through Kamal Rohmetra vs Imran Raza

Ansari". Learned counsel for the petitioners has also relied upon the

judgment of this Court in case titled "Kamal Rohmetra vs Kabir Dar",

passed in CRTA No. 3/2016 to buttress his arguments in support of the plea

for transfer of the case.

5. Ms. Monika Kohli, learned Sr. AAG, ex adverso, argued that petitioners

claiming to be ailing persons and of advance age, under refuge cannot run

away from facing trial in a case filed against them by the respondents. She

has further argued that it will be inconvenient to the respondents to

prosecute their case at Jammu, especially when all the witnesses cited in

the challan also hail from Kashmir. She has further argued that the

petitioners have already engaged Advocate of their choice at Baramulla

while causing appearance in response to the notice and it cannot be said

that they have any difficulty of facing trial at Srinagar on any count. She

has relied upon the law laid down by Hon'ble the Apex Court of India in a

case titled "Dinesh Mahajan vs Vishal Mahajan [Transfer Petition

(Criminal) No. 442/2021] in support of his argument.

6. Heard, considered and perused the record.

7. The petition has been moved for transfer of a criminal challan. It will be

profitable to extract the relevant provisions of Section 407 of the CrPC as

under:

407. Power of High Court to transfer cases and appeals. (1) Whenever it is made to appear to the High Court-

a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

b) that some question of law of unusual difficulty is likely to arise, or

c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,

it may order-

(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

3) Every application for an order under sub- section (1) shall be made by motion, which shall, except when the applicant is the Advocate- General of the State, be supported by affidavit or affirmation.

4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub- section (7).

5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with copy of the grounds on which it is made; and no order shall be made on of the merits of the application unless at least twenty- four hours have elapsed between the giving of such notice and the hearing of the application.

6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:

Provided that such stay shall not affect the subordinate Court's power of remand under section 309.

7) Where an application for an order under sub- section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.

8) When the High Court orders under sub- section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

9) Nothing in this section shall be deemed to affect any order of Government under section 197.

8. Clause (ii) of sub section (1) (c) of Section 407 CrPC provides that any

particular case or appeal, or class of cases or appeals, be transferred from a

Criminal Court subordinate to its authority to any other such Criminal

Court of equal or superior jurisdiction when it is expedient for the ends of

justice and general convenience of the parties or witnesses.

9. Petitioners in this case have also raised issue of a security and safety to

their life, while travelling to Kashmir to attend the court proceedings

merely on their apprehension. It is not that their threat perceptions have

been evaluated by any security agency or they had complained to any

authority to seek security. So far as the convenience of the parties is to be

considered, the petitioners have to travel from Jammu to Srinagar as

individuals, whereas almost all the prosecution witnesses are from

Kashmir. Therefore, prosecution as well as its witnesses cited in the challan

shall face more difficulty, physically as well as financially, to prosecute the

case at Jammu, as compared to petitioners/accused to defend themselves in

Kashmir. The petitioners/accused, in the considered opinion of this court,

cannot be allowed to have a place of their choice to be prosecuted in a case

of corruption, taking refuge of unfounded personal security. The petitioners

as accused before the trial court can have resort to seek exemption from

personal appearance through their counsel in case of any personal difficulty

during in effective hearings, however, no justifiable or reasonable ground is

made out for transfer of the complaint.

10. All the citations relied upon by the petitioners counsel are thus of no help

to them as neither an assumed/apprehended threat perception a criminal

case be transferred from a jurisdictional court, nor on the comparative

convenience when the same is also not on the side of the petitioners.

11. Having said so, this Court is of the considered opinion that the transfer

petition fails on both counts, the apprehension of security as well as on the

question of comparative convenience of the parties.

12. The petition found to be without any merit and substance is, accordingly,

dismissed, along with pending application(s). Interim direction, if any, shall

stand vacated.

(M A Chowdhary) Judge JAMMU 23.02.2023 Vijay

Whether the order is speaking: Yes Whether the order is reportable: Yes