Jammu & Kashmir High Court - Srinagar Bench
S. Surjeet Singh vs State Of J&K And Ors
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR 561-A No. 45 of 07 S. Surjeet Singh Petitioner State of J&K and ors Respondents !Mr. Z.A. Qureshi, Advocate ^Mr. M.A. Rathore, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date:22/12/08 :J U D G M E N T:
By sheer instinctive compulsions, parents want their children not only to surpass their own achievements but also to soar to On the prosecution allegations, the case in hand throws-up one such glaring example. Here on the one hand is a child who seem In a people generally corrupt liberty does not long last.
The prosecution case as revealed in the report under section 173 Cr.P.C. is that on 14th November, 2005 a complaint was rece Ms. Tabinda Irshad, informed her father, the complainant about what had happened in the school on 13th of November, 2005 when The accused was working as Supervisor/Inspector as per prosecution case. It is further revealed that accused was working as S The accused has filed this petition under section 561-A Cr.P.C. seeking quashment of the order dated 22nd of May, 2007 passed (1) The order of framing of charge against accused is bad as no sanction has been obtained from the competent authority befor (2) The accused can be deemed to be public servant under section 10 of Prevention of Unfair Means Examination Act but not und (3) The instruction issued by Assistant Secretary vide order dated 10-10-2005 cannot confer power on the superintendent to en (4) The accused is deemed to be appointed as public servant by an oral order. There being no order of termination of his serv (5) That under section 3/5 of Act of 1987 it is only on the complaint that cognizance of the offence can be taken which accor (6) That in terms of section (3) of the Jammu and Kashmir Unfair Means Act procedure provided for trying the accused is laid Before dealing with the submission made by the learned counsel for the petitioner-accused one may not lose sight of the fact Heard learned counsel for parties.
The power U/s 561-A Code of Criminal Procedure saves the inherent powers of this court ;and the provisions couched is in ne Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be Section 435 Code of Criminal Procedure after it was amended in the year 1978 Sec. 4(a) was inserted in the said section wh Section 435[(4-a)] The powers of revision conferred by this section shall not be exercised in relation to any interlocutory order passed in any A Division Bench of this Court had an occasion of considering the impact of said amended provisions on the interlocutory or Inherent power of this Court, however, is not limited by any such legal constrains and no such legal inhibition can be read The issue raised by the petitioner, if accepted, and if would result in his discharge, in such circumstances even a revis In order to deal with the submissions of Mr. Z.A. Qureshi, learned counsel for petitioner it becomes imperative and necessa Section 2(a,b,c,d,e,f & g) are reproduced as under:-
(a) board means the Jammu and Kashmir State Board of Schools Education established under the Jammu and Kashmir Board of S
(b) candidate means a person appearing or claiming to appear in an examination;
(c) competent authority means an University or the Board as the case may be;
(d) conduct of examination includes supervision of examinations, preparation or distribution of question papers, coding, ev
(e) examination means any examination held by an University or the Board;
(f) examination centre means the premises specified by the Competent authority as such for holding of any examination;
(g) inspection team means a team of two or more persons appointed and authorized by the competent authority to inspect any Section 3(a,b,c),8,9,10, & 11 of (Prevention of Unfair Means) Examinations Act, 1987; are reproduced as under:-
(a) be bound, responsible to act and to perform their duties in accordance with and as required by or under the statutes or t
(b) not to allow, connive at or facilitates the commission of any unfairmeans by any candidate;
(c) not to allow any person other than the members of the inspection team, to enter or loiter in or around the examination ce Section 8. Cognizance of offences and procedure for trial;
Notwithstanding anything contained in the Code of Criminal Procedure Samvat 1989:-
(i)all offences under this Act shall be triable by a Judicial Magistrate of 1st Class empowered by the Government in this beh
(ii) no Court shall take cognizance of any offence under this Act except on a complaint lodged by the competent authority or
(iii) all offences under this Act shall be triable in accordance with the procedure laid down under section 259-A of the Code Section 9. Misconduct by a candidate If any candidate commits misconduct or uses unfair-means he shall be liable to disciplinary action under the statutes and the Section 10. Persons engaged in the conduct of examination to be public servants;
Every person engaged in the conduct of the examination shall be deemed to be public servant within the meaning of section 21 Section 11 Application of other laws not barred;
The provisions of this Act shall be in addition to and not in derogation of any other law in force on the subject. The Prevention of Corruption Act 2006 (1949A.D), in brief Act of 2006, in its preamble provides that it is an Act for mor Section 2 of the Act of 2006 provides that for the purpose of this Act the expression public servant means a public servan Section 2.
(a) A person who is or has been a member of either House of State Legislature or a member (including Minister of State) of th
(b) Every person who is or has been under the employment of Government whether on permanent, temporary or work-charge basis;
(c) Every officer, servant or member (by whatever name called) of a Corporation or of a corporate or other body which is esta Section 5 of the Act 2006 which defines criminal misconduct for the purpose of disposal of this case relevant part thereof (1) A public servant is said to commit the offence of Criminal misconduct:-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any othe
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any va
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any
(e) if he or any person on his behalf if in possession or has, at any time during the period of his office, been in possessio The petitioner, it is stated at the time he was asked to, to be the part of the Supervisory staff of examination centre No. The learned counsel for petitioner has challenged the order of framing of charge against the petitioner by taking diametric Section 10 of the Act 1987 mandates that every person in the engagement of conducting of examination shall be deemed to be p The petitioner in view of the fact that he was engaged to conduct the examination is deemed to be public servant within me Section 2 of Act 2006, provides, that, for the purpose of said Act, Public servant means a public servant as defined in se The petitioner in view of this lucid and explicit statement of the legislature made in section 2 of Act of 2006 is a public A conjoint reading of above said provisions admit of no doubt or ambiguity about petitioners being public servant both for Now turning to next ground of challenge, which has been projected about failure of prosecution to obtain sanction for launc Section 6 of the act of 2006 provides, that no court shall take cognizance of an offence punishable u/s 161, or section 164 No court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 or section 167-A of
(a) in the case of a person who is employed in connection with the affairs of the State and is not removable from his office
(b) in the case of any other person, of the authority competent to remove him from his office. The plain language of section 6 of Act 2006 mandates that court cannot take cognizance of the offence unless previous sancti The Honbble Supreme Court in case titled state of Kerala (appellant) v Padmanabhan Nair (Respondent) reported in (1999) 5 Para 6. The correct legal position, therefore, is that an accused facing prosecution for offences under the PC Act cannot cl The Honble Supreme Court again in case state of J&K appellant v. Charan Dass Puri (Respondent).
reported in (1999) 5 SCC 738 relying on the earlier judgment of the Suprme court held that when the trial court is required Para 4. This Court in Kalicharan Mahapatra v. State of Orissa has held that if a public servant has ceased to be public ser Another ground projected by learned counsel for petitioner is that Special Judge Anti-corruption Srinagar was not competen Section 6 of the Act of 1958 provides, that Government may, by notification in the Government Gazette, appoint as many Speci Section 7 (3) Cases triable by Special Judge (1)..
(2)..
(3) When trying any case a Special Judge may also try and offence other than an offence specified in section 6 with which t Sub section (3) of section 7 clothes Special Judge with powers to try any offence other than an offence specified in secti The learned counsel for petitioner has referred to judgment of the Supreme court titled State of Gujrat appellant v. I. Mans The said judgment in the facts of the present case does not support the contention of the petitioner. The petitioner has fur On the grounds and for reasons stated above in order to secure the ends of justice it is lawful that trial court shall proc In the upshot of what has been discussed above, this petition under section 561-A fails and is dismissed. The order framing (Muzaffar Hussain Attar) Judge Srinagar 22.12.08