Jammu & Kashmir High Court
Jia Lal Verma And Others vs Central Bureau Of Investigation ... on 31 May, 2023
HIGH COURT OF JAMMU, KASHMIR AND LADAKH
AT JAMMU
Reserved on : 12.04.2023
Pronounced on: 31.04.2023
CRR No. 84/2010 &
CRR No. 83/2010 (O&M)
Jia Lal Verma and others .....Appellant(s)/Petitioner(s)
Through: Mr. Sunil Sethi, Sr. Advocate with
Mr. Navyug Sethi, Advocate.
Vs
Central Bureau of Investigation th. ..... Respondent(s)
SSP
Through: Ms. Monika Kohli, Sr. AAG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGEMENT
CRR No. 84/2010
1. The order dated 27.09.2010 passed by the court of learned Special Judge,
Anti-Corruption, Jammu (hereinafter to be referred as „the trial court‟)
whereby, the charges arising out of charge sheet in FIR bearing No.
0042003A0010 of 2003 for commission of offences under sections 120-
B, 409, 420, 467, 468, 471, 477A RPC and Section 5(2) read with
Section 5(1)(d) of the Jammu and Kashmir, Prevention of Corruption
Act were framed against the petitioners, has been impugned by the
petitioners on the ground that the Central Bureau of Investigation (CBI)
had no legal sanction to investigate the matter and further that the
impugned order is liable to be set aside on the ground that the CBI had
CRR No. 83/2010
no power to carry out the investigation and file the charge sheet against
the petitioners, when the Central Government employees were
exonerated during the investigation and the State Government
employees/private individuals were allegedly found involved in the case.
As the issue with regard to the sanction stands already concluded by the
judgment of this Court in CRMC No. 29/2016, the only issue that now
remains to be considered is as to whether CBI could have continued with
the investigation and filed the charge sheet against the petitioners or not,
when once the complicity of the Central Government employees in the
commission of alleged offences was not established.
2. Mr. Sunil Sethi, learned senior counsel for the petitioners argued that
initially the CBI had power to investigate the FIR, as there were
allegations against the Central Government employees in respect of the
commission of certain offences but once they were not found involved,
the CBI should not have been investigated the matter further and file the
charge sheet against the petitioners.
3. Ms. Monika Kohli, learned counsel for the respondent vehemently
argued that the present petition is misconceived. The FIR was validly
registered and investigated by the CBI but during the investigation, the
connivance of the Central Government employees was not established in
the commission of any offence and the charge sheet was filed against
other accused persons. She further argued that this issue cannot be raised
at this stage when the charge sheet has already been filed against the
petitioners and charges framed.
CRR No. 83/2010
4. Heard and perused the record.
5. The allegations against the petitioners are regarding the preparation of
fake bills, forged receipts causing huge loss to the State exchequer.
Initially certain Central Government Employees were also cited as
accused in the FIR, however, during the course of investigation they
were exonerated and charge sheet was laid against the petitioners only.
Petitioner Nos. 1 and 2 happen to be the Chairman and the Secretary of a
Non-governmental Organization, whereas the petitioner No. 3 happens
to be then Assistant Project Officer, DRDA, Kathua. The only issue that
is required to be considered is as to whether the objection with regard to
the jurisdiction of the CBI to investigate the matter can be raised when
the charge sheet has been filed against the accused or not.
6. This is admitted fact that the charge sheet has been filed and the charges
have been framed against the petitioners. This is admitted by the
petitioners that CBI had authority and power to register and investigate
FIR initially, as there were allegations against certain Central
Government Employees. The petitioners have not been able to
demonstrate before this court the prejudice caused to them due to
investigation by the CBI and as held by the Hon‟ble Apex Court that
illegality in investigation has no bearing upon the jurisdiction of the
court to conduct trial of the case. In "Fertico Marketing and Investment
Pvt. Ltd. and Others versus v. Central Bureau of Investigation and
Another" reported in 2021 2 SCC 525, the Hon'ble Apex Court has held
as under:
CRR No. 83/2010
22. As early as in 1955, the question arose for consideration
before this Court, as to whether an investigation carried out by a
police officer below the rank of Deputy Superintendent of
Police, under Section 5(4) of the Prevention of Corruption Act,
1947, without the order of the Magistrate of First Class, was
mandatory or directory? While holding that the provision is
mandatory, this Court considered a question as to whether and to
what extent, the trial which follows such investigation, is
vitiated. The Court, in H.N. Rishbud and Inder Singh v. The
State of Delhi, observed as under:--
9......"If, therefore, cognizance is in fact taken, on a
police report vitiated by the breach of a mandatory
provision relating to investigation, there can be no doubt
that the result of the trial which follows it cannot be set
aside unless the illegality in the investigation can be
shown to have brought about a miscarriage of justice. That
an illegality committed in the course of investigation does
not affect the competence and the jurisdiction of the Court
for trial is well settled as appears from the cases in Prabhu
v. Emperor, AIR 1944 PC 73 and Lumbhardar Zutshi v.
The King, AIR 1950 PC 26.
These no doubt relate to the illegality of arrest in the
course of investigation while we are concerned in the
present cases with the illegality with reference to the
machinery for the collection of the evidence. This
distinction may have a bearing on the question of
prejudice or miscarriage of justice, but both the cases
clearly show that invalidity of the investigation has no
relation to the competence of the Court. We are, therefore,
clearly, also, of the opinion that where the cognizance of
the case has in fact been taken and the case has proceeded
to termination., the invalidity of the precedent
investigation does not vitiate the result, unless miscarriage
of justice has been caused thereby."
It could thus be seen, that this Court has held, that the
cognizance and the trial cannot be set aside unless the illegality
in the investigation can be shown to have brought about
miscarriage of justice. It has been held, that the illegality may
have a bearing on the question of prejudice or miscarriage of
justice but the invalidity of the investigation has no relation to
the competence of the court."
7. In view of above, the present petition is found to be mis-conceived and
the same is, accordingly, dismissed.
CRR No. 83/2010
CRR No. 83/2010
8. For reasons stated by this Court today in CRR No.84/2010 hereinabove,
this petition also stands dismissed on the same terms.
9. Copy of this order be placed on record of the each file.
(RAJNESH OSWAL)
JUDGE
Jammu
31.05.2023
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
