Jammu & Kashmir High Court - Srinagar Bench
Shaidha Shafi And Anr vs State Of J&K; And Others on 6 June, 2018
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRMC No. 41/2016
Date of decision: 06.062018
_______________________________________________________________
Shahida Shafi and another vs. State of J&K
Coram:
Hon'ble Mr. Justice Janak Raj Kotwal, Judge
Appearance:
For petitioner(s) : Mr. Molvi Aijaz, Adv.
For respondent(s) : Mr. B. A. Dar, Sr. AAG
(i) Whether to be reported in
Press, Journal/Media : Yes/No
(ii) Whether to be reported in
Journal/Digest : Yes/No
1. This is a petition under section 561-A Cr.P.C.
2. In the charge-sheet filed by the State Crime Branch Police after investigation in FIR No. 24/2013 of Police Station, Crime Branch, Kashmir under sections 5(1) (d) read with 5(2) P.C. Act and 420, 201, 120-B RPC, petitioners are stated to have figured at Serial Nos. 22 and 23 respectively in the array of the accused persons. However, proceedings against petitioner No. 1 and some others, because of their juvenility, are being held on a separate charge-sheet by the Juvenile Justice Board (Chief Judicial Magistrate), Srinagar where she is stated to be figuring as accused No. 3.
2. Petitioners seek quashing of both the charge-sheets primarily on the ground that the accusation against them do not constitute commission of any offence inasmuch as prosecution has no legal evidence, which can warrant their conviction. It is contended that the only witness cited as PW 16 against the petitioners has not supported the prosecution case at the trial of the case. The other witness, namely, Shabir Ahmad, PW-21, has been arrayed as accused CRMC No. 41/2016 Page 1 of 4 and dropped from the list of witnesses so his statements recorded under section 161 or under section 164 Cr.P.C. cannot be read against the petitioners. It is contended also that there is no evidence about the involvement of petitioner No. 1 in any conspiracy.
3. The petition quotes the accusation against the petitioners in the charge-sheet, the relevant portion whereof is reproduced verbatim:
"The conspiracy hatched by Farooq Itoo with other accused persons regarding sale of CET papers was joined by above two accused persons actively on the evening of 22.06.2012 after meeting Feroz Ahmad Mir at the instance of accused no. 3, Sajad Ahamd Bhat and receiving of question paper by the accused candidate by way of purchasing the same through the accused father, at his own house. In furtherance of the said conspiracy, accused Mohammad Shafi Bandh managed the payment and agreed to pay an amount of Rs. 10.00 lacs to Farooq Itoo for providing CET papers in advance. The accused father had actually agreed for payment of Rs. 20.00 lacs, but after seeing the question paper, he resorted to bargaining and settled the deal at Rs. 10.00 lacs which was paid by him in cash. She has secured only 58% marks in 12th class examination and managed 26th rank in the merit list of CET 2012.
She has also failed in the sessional exam and was not allowed to sit in MBBS Ist year examination by the GMC authorities. The father-daughter due acting in such manner fraudulently managed the selection of latter in the MBBS 2012 list as a top ranker by usurping the merit position of the otherwise genuinely qualified candidate.
A separate charge is being submitted before the competent court for her trial as Juvenile."
4. The aforementioned grounds were similarly and vehemently urged before the Court by the learned counsel for the petitioners, Mr. Molvi Aijaz, Advocate. However, it emerged as common ground of both the sides that during pendency of this petition, petitioner No. 2 and the other accused have been recently convicted and sentenced by the court of the Special Judge, Anti-Corruption, Srinagar. Even in spite of such a development, learned counsel for the petitioners submitted vehemently that conviction of petitioner CRMC No. 41/2016 Page 2 of 4 No. 2, notwithstanding, there is no evidence against petitioner No. 1 and the charge-sheet and the proceedings against her are liable to be quashed. Learned counsel seems to have taken great pains in citing the authorities reported as (2015) 4 Crimes (HC) 139, (1998) 5 SCC 749, AIR 1962 Madras 142, AIR 57 SC 927, AIR 1960 SC 866, (2008) 8 Supreme 811 and (1966) 9 SCC 766 to explain the scope of the inherent jurisdiction of the High Court under section 561-A Cr.P.C. (482 of the Central Code). Per contra, learned Sr. AAG, Mr. B. A. Dar, submitted with equal vehemence that petitioner No. 1 too was involved in the conspiracy inasmuch as she is the beneficiary of the conspiracy hatched by petitioner No. 2, he is her father, which is evident from the fact that in spite of being an average student in her academics, having secured 58 per cent marks in 12th class, she could manage 26th rank in the merit list of CET, 2012, which was possible only because of the conspiracy whereby they had managed to lay hands on the question papers in advance.
5. Having regard to the nature of accusation against petitioners 1 and 2 together and the alleged merit position of petitioner No. 1 in the merit list CET, 2012, I am not persuaded to take a view that a case for showing indulgence in terms of section 561-A Cr.P.C. is made out and proceedings against the petitioner No. 1 can be quashed, to say the least. Suggestion made by the learned counsel for the petitioners that, since the proceedings before the Juvenile Board have lingered on for unreasonably long duration, a direction is require to be issued to the learned Board to finalize the proceedings against petitioner No. 1 after recording and according consideration to the evidence of only those witnesses, who are relevant to the accusation against her, too cannot be accepted as such a course is unknown to and not permissible in trial/proceedings in criminal cases.
CRMC No. 41/2016 Page 3 of 46. Another point raised by the learned counsel for the petitioners at bar was that Rule 15(8) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 (for short the Rules) mandates completion of the inquiry by the Juvenile Board within a period of four months so the proceedings before the learned Board, since they are pending for last over four years, have vitiated for inordinate delay and on that score also indulgence of this Court is required and the proceedings deserve to be quashed.
7. In reply to this submission, learned Sr. AAG produced a chart, which explains the reasons leading to delay in completion of the inquiry by the Board. On perusal of this chart, it has been found that various factors, all of them not attributable to the conduct of inquiry by the State or holding of inquiry by the Board, have contributed to the delay. Even though Sub Rule (8) mandates completion of the inquiry within a time limit, Sub Rules (9) and (10) provide for the scope of exceeding the time limit. Proceedings, however, cannot be quashed on this score alone.
8. For the aforementioned, while finding no case for quashing the proceedings, this petition is dismissed, however, with a direction to the learned Juvenile Justice Board (Chief Judicial Magistrate), Srinagar to have regard to Sub Rules (8), (9) and (10), in particular, Sub Rule (10) of the Rule 15 of the Rules and expedite the proceedings.
9. Registry shall send a copy of this order to the learned Juvenile Board (supra).
(Janak Raj Kotwal) Judge Srinagar:
06.06.2018 Rakesh CRMC No. 41/2016 Page 4 of 4