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Jammu & Kashmir High Court - Srinagar Bench

Ghulam Rasool Mir vs State Of J&K; on 2 February, 2018

Author: Ali Mohammad Magrey

Bench: Ali Mohammad Magrey

             HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR

561-A No. 75/2017
MP No. 01/2017
                                        Date of Order: 2nd February, 2018.

Ghulam Rasool Mir               Vs.                 State of J&K

Coram:
              Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

Appearance:

       For the Petitioner(s):   Petitioner present in person.
       For the Respondent(s):   Mr M. A. Wani, Sr. AAG.

i) Whether approved for reporting                         Yes/No

{Oral};

01. The petitioner, accused in FIR bearing No. 20/2015, registered at Police Station, Pulwama, for the commission of offences under Sections 419, 420, 467, 468, 471 and 120-B of the Ranbir Penal Code (RPC), has, during the pendency of the trial, laid a motion before the Court of learned Judicial Magistrate 1st Class, Pulwama, for de-freezing the savings Bank Account No. 11036038545 maintained in the 'Elaqai Dehati Bank', Branch Pulwama, which motion has been rejected by the learned trial Magistrate vide order dated 31st of October, 2016. Aggrieved thereby, the petitioner filed a revision petition against the order of the learned trial Magistrate before the Court of learned Additional Sessions Judge, Pulwama and the revisional Court, in terms of the order dated 14th of December, 2016, has disposed of the revision petition by directing the 561-A No. 75/2017 Page 1 of 5 petitioner to execute a bank guarantee of Rs. 41.00 lacs or above in favour of the Investigating Officer (IO) or the learned trial Magistrate with two sureties, who should be Government employees or two persons of substantial status, with the condition that if, at the end of the trial, it is found that the amount is liable to be recovered from the petitioner and, in case the petitioner fails to pay the amount, then, in such eventuality, the bank guarantee, so furnished, shall be liable to be enforced. It was further observed by the learned revisional Court that upon furnishing the bank guaranteed, as stated above, the Investigating Officer (IO)/ the learned trial Magistrate shall release the amount to the petitioner and permit him to operate his account. The order aforesaid of the revisional Court was challenged before this Court through the medium of petition filed under Section 561-A Cr. P.C. bearing No. 262/2016, which stands disposed of in terms of the order dated 13th of February, 2017, directing the revisional Court to rehear the parties and pass fresh orders in light of the observations made.

02. Thereafter, the learned revisional Court, in terms of order dated 27th of March, 2017, which is the subject matter of the instant petition, has disposed of the revision rejecting the claim of the petitioner for release of amount of Rs. 41.00 lacs, without furnishing the bank guarantee of Rs. 41.00 lacs.

03. The order of the learned revisional Court, impugned in this petition, is well justified and well-reasoned, as the learned revisional Court has supported the order not only with the material available on record, but also with the law governing the subject.

04. The ground taken by the petitioner that the learned revisional Court has erred in applying the law on the subject which has reference to the judgments delivered by the Supreme Court titled "State of Maharashtra v. Tapas D. Neogy", reported in "(1997) 7 Supreme Court Cases 685"

and "(1999) AIR SCW 3389", has no substance, as the order of the learned revisional Court is based on material available on record and the application of the judgments is well justified.

05. The perusal of the record reveals that the petitioner's involvement is in sanctioning of fictitious loans for more than 41.00 lacs, which amount, prima facie, as per the stand of the investigating authorities, was found in the account of the petitioner. Therefore, the Investigating authorities have rightly seized the account in question, subject to the orders from the competent Court of law or subject to the outcome of the trial Court.

06. The learned trial Magistrate as well as the learned revisional Court have, in detail, discussed the material on record with reference to, prima facie, involvement of the petitioner in the commission of the offences. Moreover, the revisional Court has also supported the discussion with relevant law and judgments governing the subject.

07. There is no scope for this Court to interfere in the matter while exercising the inherent powers vested in terms of Section 561-A of the Criminal Procedure Code. Scope of interference in the criminal proceedings, pending before the learned trial Magistrate or in the investigation pending before the police authorities, is limited. Law on the subject is no more res integra and need not be taken note of.

08. The concern of the petitioner regarding filing of the charge sheet and early conclusion of the trial is well registered as, otherwise, prolonged trial may, as stated above, prejudice his rights with particular reference to utilize the amount so seized.

09. Mr Wani, the learned Senior Additional Advocate General, when asked, as to within how much time the investigation in the case will be completed, as it is already two years now since the registration of the FIR that the investigating authorities are not in a position to complete the investigation in the case, he submits that the investigation in the case is in progress, but in view of the huge number of witnesses being examined alongwith the documents, the investigation may take some further time.

10. Needless to mention, that for about 10 months' now, the instant petition is pending without any interim stay, which, otherwise, means that the learned trial Magistrate must have proceeded in the matter in accordance with the law.

11. Without disturbing the decision of the learned trial Magistrate and as maintained by the learned revisional Court, in the interests of justice, this petition can be disposed of by asking the Investigating authorities to complete the investigation in the case with due dispatch at the earliest and not later than two months.

12. In the above background, this petition is disposed of in the following manner:

I. The order dated 31st of October, 2016, passed by the learned trial Magistrate and upheld by the learned revisional Court in terms of order dated 27th of March, 2017, to the extent of release of bank 561-A No. 75/2017 Page 4 of 5 account which shall be governed by the order of the learned revisional Court, are maintained;

II. The Deputy Superintendent of Police, Pulwama (Investigating Officer) to complete the investigation in the case within a period of two months positively;

III. Extension in time can be granted by the learned trial Magistrate for completing the investigation, as directed hereinabove, on plausible grounds, if accepted by the Court;

IV. The investigating Officer shall register the concern of this Court with reference to the pendency of the investigation in the case for the last more than two years; and V. In the event, the Investigating Officer fails to discharge his duties despite the directions of this Court, there shall be no option, but to deal with the said Officer in accordance with law.

13. Before parting, I deem it appropriate to note here that no comments can be made about the efficiency of the Officer who is investigating the instant case as it may, otherwise, effect his rights, but the Court is compelled to notice the approach adopted in dealing with the matter, being casual. Whatever the nature of the offences, the police authorities cannot keep the investigation pending for years together, which may have adverse effect on the rights of the accused, who, as per the well settled procedure, are treated as innocent till their guilt is proved.

14. 561-A petition alongwith connected MP(s) disposed of in the above terms.

(Ali Mohammad Magrey) Judge SRINAGAR February 2nd, 2018 "TAHIR"