Jammu & Kashmir High Court
Mohammad Shafi Shah And Ors. vs State Of J. And K. And Ors. on 15 July, 2000
Equivalent citations: 2001CRILJ580
JUDGMENT Syed Bashir-Ud-Din, J.
1. In this appeal judgment and order dated 15-9-1999 of writ Court (learned single Judge) dismissing at pre-admission stage the writ petition is under challenge. By impugned judgment prayer of quashment of FIRs 119/98, 120/ 98 and 121/98, registered at Police Station Vigilance Organisation Kashmir; investigations of these cases; sanction to prosecute granted in the FIR 119/98 & 121 /98; sought sanction to prosecute in other FIR(s) and intended prosecution of appellants/writ petitioners has been declined. The writ Court has come to the conclusion that during investigation of FIR 87/97, VOK, the Investigating agency had reason to suspect the commission of offences by the accused and found basis for registration of the cases, followed by subsequent investigation of the cases. In investigating these cases, no provision of law has been breached. The claim of infraction of rules or salutary provision meant for investigation of cases, is without any basis. Note was taken of claim of spot inspection by the Investigating agency and assertion that the conclusion arrived at by the Investigating agency are prima facie based on material collected, physical verification conducted and available records. The claim of biased/motivated investigation putforth by appellants is answered as without any basis. The sanction accorded to prosecute the accused/appellants has been in accordance with law and the sanction is found accorded on application of mind and on consideration by the competent authority of the whole fact-situation and in entirety of circumstances of the case. The learned single Judge also noted that when the investigation is complete and sanction to prosecute has been accorded and report under Section 173, Cr.P.C. is to be forwarded to the competent Court for trial, then at such stage of proceedings, it is not advisable to exercise jurisdiction under Article 226 of the Constitution and under Section 561-A, Cr.P.C. so as to set at naught the whole investigative process culminating in final report and sending up accused for trial after obtaining the sanction to prosecute the writ petitioners, the employees in the service of Public Health Engineering Department of the Government.
2. A brief resume of facts, necessary to appreciate the controversy and raised contentions on eitherside is as under ;-
The writ petitioners/appellants employees (Ex-Engineer, Asstt. Engineers' and Jr. Engineers') of Public Health Engineering Department of the Government were posted and rendered duty at the relevant time, in Public Health Engineering Division Handwara. FIR 89/97 PS VOK against different officials of PHE Department Handwara was registered by the Vigilance Organisation, after public complaints of large scale bunglings, fabrication of records, misappropriation of public money and various acts of omissions and commissions were voiced and the matter was referred to Vigilance Organisation through General Administration Department of the State Government. During spot inspection and investigations conducted by the Vigilance Organisation in FIR 89/97 (Ibid), the VOK Registered four FIRs' namely 118/98, 119/98, 120-98 and 121/98 against the concerned officials and contractors. FIR 118/98 is in respect of alleged embezzlement of 11-5 K.Mtrs. long replaced C.I. Pipes extending from Mawar Nallah to Filtration Plant Handwara, during the Course of execution of work in the year 1997-98. The investigation was closed in this case as "not proved" after it was found that the Pipes were physically existing on spot.
3. FIR 119/98 is in respect of embezzlement, and misappropriation of funds to the tune of Rs. 53,100/- after some Hand Pumps were found not, in place and physically existing at the indicated place(s) in Block Kupwara and Rajwara. These Hand Pumps were to be installed for supplying water in the District Kupwara under Minimum Need Programme Scheme during 1997-98. During investigation the allegation was found true by the Investigating agency in so far as seven Hand Pumps were seen not installed in different Blocks of District Kupwara and thereby Rs. 1,25.076 (value of Pumps) is misappropriated.
4. In FIR 120/98, the incriminating allegations is that during 1997-98, an amount of Rs. 49,400/- drawn in respect of work of construction of retaining Wall and pillers for protection of supply mains near service Reservoir Drugmulla, was misappropriated. This amount was drawn fraudulently. The records were manipulated and forged. The work was on investigation found non-existent and not executed at all. The Government and public money is embezzled.
5. In FIR 121/98, an amount of Rs. 50,400/- is alleged to have been drawn and misappropriated in respect of non-existent and non-executed work of improvement and extension of water supply scheme Kalamchakla, stablization of 100 M.M. Mains and providing additional P.S. Pipes to Chuntipora and Mirpora after forging documents/record and committing fraud. The embezzlement of said Government/Public money and entering into a criminal conspiracy thereto is stated to be made out on investigation. The above incriminating allegations against officials, the accused, it is asserted are supported by the evidence and material collected during investigations and on physical verification on spots. To make accused to stand trial, sanction, it is further stated has been sought as a prelude to filing of report under Section 173, Cr.P.C. (Challan) before the Court of law.
6. The appellants are accused in the above three cases based on FIR 199/98 to 121/98. Being members of gazetted and non-gazetted Engineering service, PHE Department of the Government, Sanction as precursor to filing of report under Section 173, Cr.P.C. before the competent Court of law, has been sought. The sanctioning authority has granted sanction to prosecute the concerned accused in FIR 119/98 (Ibid) vide Government order Nos. 19, 20, 21-GAD (Vig) of 99 dated 26-2-1999. The sanction for prosecution in respect of other two FIRS (FIR 120/98 and 121/98) is pending with the competent authority.
7. The learned counsel for the appellants canvasses that pre-requisite of existence of reason to suspect the commission of an offence (s) as required under Section 157 of Cr.P.C. for commencement of investigations is wanting in these cases. The Vigilance Organisation has no reason to register the FIRs 119/98, 120/98 and 121/98 and launch investigations thereto. The incriminating allegations drawn from FIR 89/97 are false and non-existent. Neither works were inspected nor spots were physically reached to arrived at truth. The registration of cases and launching of investigations is without reason and has no warrant in law.
8. The counsel further argues that the Registration of FIRs on information derived from FIR 89/97 is hit by Section 162, Cr.P.C. and does not fall within the realm of information to serve as basis for registration of a noncognizable case under Section 157, Cr.P.C. read with Section 154 of Cr.P.C. On receipt of information of cognizable offence, the Investigating Officer or an officer subordinate to him under his orders, is under legal duty to conduct spot inspection to inspect facts and circumstances as mandated by Section 157, Cr.P.C. By failing to conduct the spot inspection in these cases, appellant/accused personal liberty is under wanton assault and accused have been thereby seriously prejudiced. They have been deprived of personal liberty and right to life, guaranteed by Article 21 of the Constitution.
9. The counsel goes on to submit that the Investigating Agency has acted and performed in this case from a pre-conceived stand-point in breach of procedure and requirement of statute, which has led to erroneous, faulty and untrue conclusions. The investigating agency has based the case on extraneous considerations and has acted maliciously to harass and humiliate the appellants. The documents including replies to questionnaires and presentations filed by the appellants/accused have not been taken into consideration. The whole attempt has been to rope in accused and took cases against them in disregard to the real facts at the cost of innocence of the case. The counsel also canvasses that the Vigilance Organisation and its officers including Investigating Officer have tainted and manoeuvred investigation report in the matter in such a mode and manner as to obtain sanction for prosecution. The sanction has been accorded in total disregard to the facts and circumstances of the case. The basic facts and reasons are absent. The sanction has been accorded even before completion of the investigation.
10. In reply Mr. M.H. Attar, the learned Addl. Advocate General while countering the arguments of the appellants counsel submits, that the FIRs' 119/98 to 121/98, have been registered after the Investigating Officer had reason to suspect commission of non-cognizable offences. The incriminating allegations are based on facts as found on spot during the course of investigation of FIR 118/98. The spots were physically inspected and the works were found non-existent. The amounts shown expended on the Hand Pumps and other above works have not been spent. The accused are not prejudiced. The investigation has been conducted fairly, justly and within the confines of law including Chapter XIV of Cr.P.C. The allegation of life and personal liberty of appellants being violated is without any basis. Afterall appellants cannot claim their right to life and personal liberty under Article 21 of the Constitution is infracted, as long as the Investigating agency in exercise of its statutory powers, investigates into suspected cognizable offence of the accused. This right is subject to procedure established by law and the Constitution. A citizen can be deprived of personal liberty as per procedure established by law and the constitution. A citizen cannot complain of deprivation of personal liberty if same is as per procedure and mode prescribed/established by Code and the Evidence Act. Merely because, the information, gathered/culled from FIR 89/97, is the basis for Registration of FIRs 119/98 to 121/98, it cannot be said that this information and consequent registration of cases is hit by Section 162, Cr.P.C. and therefore, cannot be the basis of Registration and lodging of first information report within the meaning of Section 154, Cri. P.C. The Investigating Agency has undertaken the physical verification, examined the record and conducted the spot inspection and taken other investigative steps before coming to the conclusion that the incriminating allegations in all three cases are sustainable and made out on investigations conducted in these cases. The counsel further submits that even if it is taken for a moment that the documents relevant to the stand taken by the accused have not been considered by the Investigating Officer, the same cannot be a ground for quashing the registration of cases, their investigations and sought sanction to prosecute the accused. The irregularities or omissions in investigating the case (s) cannot be a cause for quashing proceedings, as long as no miscarriage of justice is caused. The High Court has rarely interfered in the statutory rights of the police to investigate the cognisable offence and that in exceptional circumstances. This case does not fall in any of the excluded category of cases where High Court could interfere to correct the miscarriage of justice or to stop abuse of investigative process or otherwise to secure ends of justice. The Police while investigating an offence (s) perform statutory function. Such statutory function and duty cannot be interfered with in routine and on just askance for. This is more so when no animosity, extraneous consideration or any thing of the sort prompts the registration of the case(s) and its investigation. Because, some documents relevant to a case are omitted from consideration by the Investigating agency, malice cannot be inferred therefrom. There is no material to support the suggested harassment or humiliation or character assassination of appellant-accused. They are not known to the investigating officer. There is no unauthorised purposes for launching the criminal proceedings. Therefore, to any that the accused have been roped in and cases cooked up in disregard to the real facts and circumstances of the case is an allegation wholly bereft of truth and without any basis. The counsel also solicits that the sanction was given in respect of facts and offence charged on conclusion of the investigations. It is on consideration of the final report of investigating agency and on examination of the whole record, the sanction is given by competent authority. The impugned sanction order itself make it clear that the sanctioning authority/government considered the relevant material and considered all the circumstances having a bearing on the question of accord of sanction to prosecute. The contention of the appellants that the report has been manevoured to obtain sanction for prosecution is untrue. The sanction has been accorded after keeping in view the totality of facts and circumstances of the case and on evaluation and examination of the record on the merits of the case. It is wrong to say that the sanction has been accorded before completion of investigation. Mr. Attar goes on to submit that in any case serious disputed questions of fact are raised. The documents which appellants allege were not considered by the Investigating Agency (including reply to the questionnaire and presentations made by them) have not reached the Investigating Officer. These so-called documents have been tailor made to suit their stand. In the final report the Investigating agency including the I.O. and the supervisory officers have explicitly stated that only in one case (FIR 119/98) the two appellant accused submitted their reply to the questionnaire and these replies were considered. In other FIRs, the replies have not been filed by the accused/appellants and in any case not received by Investigating Officer/agency. The appellants contention that the spot was not inspected is equally without any basis and not born out by facts and record of the Investigating agency. It should fairly appear from the reports of the Investigating officer that the spots were inspected and works were physically verified on spot, but found non-existent/non-executed, the document/material annexed with a writ petition is counter asserted as not genuine by the respondents. Even in the objections placed on record of the writ file, the respondents have refused to acknowledge/admit genuineness of these annexures. In such circumstances invocation of writ jurisdiction is inappropriate and improper.
11. High Court has undoubtedly powers to quash criminal proceedings in exercise of powers under Arts. 226 and 227 or Section 561-A of J. & K Cr.P.C., (Section 482 of Central Cr.P.C), irrespective of nomenclature under which petition is filed and independent of powers of the Court to discharge the accused at the stage of framing charges or existence of remedy of appeal or revision under the Code. See Pepsi Food Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 : AIR 1998 SC 128 : (1998 Cri LJ 1).
12. In State of Haryana v. Bhajan Lal 1992 Suppl (1) SCC 335 : AIR 1992 SC 604 : (1992 Cri LJ 527), it is pointed out (para 109 of AIR & Cri LJ) :-
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon the enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whim or caprice....
13. In State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 : (1980) 2 SCR 16 : (1980 Cri LJ 98) it is observed that unless extraordinary case of gross abuse of power by those incharge of investigations is made out, the Courts should be quite loath to interfere at the investigation stage.
14. In State of Bihar v. P.P. Sharma 1992 Suppl (1) SCC 222 : (1991 Cri LJ 1438, Hon'ble K. Ramaswamy, J. is on record to say (at p. 1462 of Cri LJ).
68. ...Quashing the charge-sheet even before cognizance is taken by a criminal Court amounts to "killing a stillborn child". Till the criminal Court takes cognizance of the offence there is no criminal proceedings pending. I am not allowing the appeals on the ground that alternative remedies provided by the code as a bar. It may be relevant in an appropriate case. My view is that entertaining the writ petitions against chargesheet and considering the matter on merit in the guise of prima facie evidence to stand an accused for trial amount to pre-trial of a criminal trial amount to pre-trial of a criminal trial under Article 226 or 227 even before the competent Magistrate or the Sessions Court takes cognizance of the offence. Once the proceedings are entertained the further proceedings get stayed. Expeditious trial of a criminal case is the cardinal rule. Delay feeds injustice to social order and entertaining writ petition would encourage to delay the trial by diverse tricks....
15. In Eastern Spinning Mills Shri Virendra Kumar Sharda v. Rajiv Poddar AIR 1985 SC 1668 : (1985 Cri LJ 1858) in para 4, it is laid :-
...We consider it absolutely unnecessary to make reference to the decisions of this Court and they are legion which have laid down that save in exceptional case where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences....
16. Right to life and personal liberty as enshrined in Article 21 of the Constitution is subject to procedure established by law and the constitution. A citizen can be deprived of personal liberty as per procedure prescribed/established by Code and Evidence Act. The investigator has statutory powers to investigate into suspected cognizable offence of an accused and such act cannot be termed as assault on personal liberty.
17. In State of Bihar v. P.P. Sharma (1991 Cri LJ 1438) (SC) (supra), Justice K. Ramaswamy, one of the learned Judges on the Bench said (at p. 1459 of Cri LJ) :-
60. The contention of Sri R.K. Jain, the learned senior counsel is that when the evidence collected during the investigation was not unimpeachable, the prosecution and continuance of the proceedings are only a step in the process of harassment to the respondents, offending their right to life and livelihood enshrined under Article 21 of the Constitution. The question is whether the impugned actions would offend Article 21 of the Constitution. Article 21 assures every person right to life and personal liberty. The word personal liberty is of the widest amplitude covering variety of rights which goes to constitute personal liberty of a citizen. Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme law, the Constitution. The investigator must be alive to the mandate of Article 21 and is not empowered to trample upon the personal liberty arbitrarily, though the Code gives unfettered power to investigate into the suspected cognizable offence imputed to an accused. The gravity of the evil to the community resulting from anti-social activities or commission of the grave crime by itself would not give carte blanche right or power to the investigator to invade the personal liberty of a citizen except in accordance with the procedure established by law and the constitution. The observance of the procedure, therefore, is an assurance against wanton assaults on personal liberty.
18. In Emperor v. Khawaja Nazir Ahmad, AIR 1945 PC 18 : (1945 (46) Cri LJ 413) the Judicial Committee of Privy Council said :-
...The functions of the Judiciary and the police are complementary, not overlapping. Combination of individual liberty with due observance of law and order is only to be obtained by leaving each to exercise its own functions.
19. In State of Haryana v. Bhajan Lal (1992 Cri LJ 527) (SC) (supra), it is observed (para 62) :-
...that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obligerating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned....
20. The investigation into an offence is statutory function and duty of the police and superintendence thereof is vested in State Government. High Court has to be cautious and reluctant to interfere with statutory right of the police to investigate a cognizance offence except in exceptional cases like where investigation is conducted with oblique motive and maliciously or offence even ex facie not being made out or investigative process or investigation is to cause miscarriage of justice or interference is otherwise necessary to secure the ends of justice.
21. Commencement of investigation in a cognizable offence by a police officer is subject to police officers reasons to suspect commission of cognizable offence and police officer's subjective satisfaction has to be sufficiently grounded to enter the arena of investigation of a case.
22. In State of Haryana v. Bhajan Lal (1992 Cri LJ 527) (supra), the Apex Court in the context of commencement of investigations and conditions precedent thereto under Section 157(1) of Cr.P.C. observed (para 54) :-
54. From the above discussion, it is pellucid that the commencement of investigation by a police officer is subject to two conditions, firstly, the police officer should have reason to suspect the commission of a cognizable offence as required by Section 157(1) and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case as contemplated under Clause (b) of the proviso to Section 157(1) of the Code.
Section 157, Cr.P.C. provides that :-
If, from information received or otherwise, an officer-in-charge of police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Government may, by general or special order, prescribe in this behalf to proceed to the spot, to investigate the facts and circumstances of the case....
23. The proviso (a) to the Section provides that local investigations can be dispensed with whenever incriminating information given is against a named person and the case is not of serious nature.
24. Proviso (b) empowers an officer-incharge of police station not to investigate the case, if he sees no sufficient ground to investigate.
25. Section 156, Cr.P.C. invests officerin-charge of a police station with powers to investigate any cognizable case without orders of competent Magistrate thereto.
26. On a combined reading of Sections 157, 156 and 154, it is manifest that the precondition for investigation of a cognizable offence/case by the police is the reason to suspect the commission of offence and the police officer or his subordinate prescribed police officer is to proceed the spot to investigate the facts and circumstances of the case. It is no where provided that the information basis for launching of investigation in a cognisable case has to be of a particular origin or is to come from a specified source. Investigation of a cognisable case may lead to launching of investigations into yet another cognisable case/offence. The limitation for use of a statement recorded under Section 162, Cr.P.C. is confined to the statements made by persons to police officers during the course of investigation under Chapter XIV of Cr.P.C. The registration of a case by the Police Officer sub-motu on detection of crime while investigating a different case, does not answer the description of the statement to police and use of such statement in evidence within the confines of Section 162, Cr.P.C. Use of words 'if from information received or otherwise' in Section 157, Cr.P.C. are significant. The word 'otherwise' would imply the knowledge of the investigating officer or officer incharge of the police station drawn while investigating another cognisable offence or case. To say that such incriminating facts and circumstances leading to investigation of facts and circumstances of a different case or related case or offence (cognisable offence) is hit by provision of Section 162, Cr.P.C. is to add something not mandated by law and consequently the contention cannot be upheld.
27. The contention that the competent police Officer did not proceed to spot to inspect the fact and circumstances of the case, is not born out by record. The FIRs', final report as also record unequivocally speak of spot inspections, physical verification and local investigation of the cases besides examination of record and taking other investigative steps required under law. Writ petitioners have not placed any material on record to show that the police officer did not proceed to the spot to investigate the facts and circumstances of the case. Mere contention that the spot inspection took place in the FIR 89/97 and not in FIR 119/98 to 121/98 in the face of stout denial by the State and its officials cannot be a ground to set at naught the registration of the FIRs and launching of the investigations followed by other steps required for culmination of the investigations as in this case, into a report under Section 173 of Cr.P.C. The simultaneous local investigations and spot inspections and physical verifications in FIRs 119/98 to 121/98 (and the FIR 89/97 closed as not admitted) does not militate against the spirit and the legality of local investigations of the facts and circumstances of the cognisable cases referred under Section 157 read with Section 154, Cr.P.C.
28. There is no material to show that earlier to lodging of FIRs, there was any animosity between accused and Investigating Officer or that the filing registration of FIRs was result of any malice. It is not shown, even not so suggested that Investigating officer was even known to the writ petitioners or vice versa. The initiation of and continuation of Cr. Proceedings is not seen on record based on any extraneous consideration/or for an unauthorised purpose. No basis or reasons to act maliciously on the part of Investigating Officer emerges on record. There is no material to support (sic) suggested assertions of "harassment', 'humiliation', 'character assassination' of respondents. Merely because some documents relevant to the accused are omitted from consideration by investigating agency, malice in law cannot be inferred. Mere assertion or bald statements of mala fides unsupported on record is not sufficient Failure of Investigating Officer to exercise some statutory powers cannot be a ground to throw out the whole criminal case(s) lock, stock and barel.
29. Contextually, in P.P. Sharma's case (1991 Cri LJ 1438)(SC) (supra) the following observations of Supreme Court, germain as they are, can be noticed (at p. 1448 of Cri LJ):-
23. The informant, being in a peculiar position having lodged the accusation, is bound to be looked down upon by the accused persons. The allegations of mala fide, therefore, against the informant based on the facts after the lodging of the FIR are of no consequence and cannot be the basis for quashing the proceedings. As regards the Investigating Officer, he has wide powers under the Criminal Procedure Code. He has to perform his duties with the sole object of investigating the allegations and in the course of the investigation he has to take into consideration the relevant material whether against or in favour of the accused. Simply because the Investigating Officer, while acting bona fide, rules out certain documents as irrelevant, it is no ground to assume that he acted mala fide. The police report submitted by the Investigating officer has to pass through the judicial scrutiny of a Magistrate at the stage of taking cognisance. Although the accused person has no right to be heard at that stage but in case the accused person has any grouse against the Investigating Officer or with the method of investigation he can bring to the notice of the Magistrate his grievances which can be looked into by the Magistrate. When the police report under Section 173, Cr.P.C. has to go through the judicial scrutiny it is not open to the High Court to find fault with the same on the ground that certain documents were not taken into consideration by the Investigating Officer....
Before coming to the challenge thrown to accord of sanction Under Section 197, Cr.P.C. to prosecute the appellants, the observations of their Lordships, in P.P. Sharma'sa case (1991 Cri LJ 1438 at pp. 1450 and 1461) (supra) are noticed as under :-
Per Kuldeep Singh, J.
...To comply with the provisions of Section 197 it must be proved that the sanction was given in respect of the facts constituting the offence charge. It is desirable that the fact should be referred to on the face of the sanction. Section 197 does not require the sanction to be in any particular form. If the facts constituting the offence charged are not shown on the face of the sanction, it is open to the prosecution, if challenged, to prove before the Court that those facts were placed before the sanctioning authority. It should be clear from the form of the sanction that the sanctioning authority on consideration of all the circumstances of the case, it sanctioned the prosecution....
Per Ramaswamy, J.
... It is equally well settled that before granting sanction the authority or the appropriate Government must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and that the appropriate Government would apply their mind to those facts. The order of sanction is only an administrative act and not a quasi-judicial one nor is a lis involved. Therefore, the order of sanction need not contain detailed reasons in support thereof as was contended by Sri Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard. The question of giving an opportunity to the public servant at that stage as was contended for the respondents does not arise. Proper application of mind to the existence of prima ficie evidence of the commission of the offence is only a pre-condition to grant or refuse to grant sanction. When the Government accorded sanction, Section 114(e) of the Evidence Act raises presumption that the official acts have been regularly performed. The burden is heavier on the accused to establish the contra to rebut that statutory presumption....
30. Orders of sanction granted in above FIR 119/98 and FIR 121/98 of P.S. VOK, Annexures I, J, K to Writ petition ex facie reveal that the sanctions have been given in respect of the facts constituting two cases relating to Hand Pumps in Sub-Divisions of Rajwar and Sogam of District Kupwara and additional P.S. Pipes to villages of Khuntepora and Mirpora of district Kupwara. The facts and circumstances constituting the offences with which the appellants accused stand charged are succinctly referred in the sanction itself. The sanction orders show that the Government considered the records and the evidence collected in the course of investigations and applied its mind to the facts and circumstances of the case.
31. Consideration of relevant material, facts and circumstances of the case is visible from the form of orders of sanction itself. The form and tenor of sanction gives an impression that the sanctioning authority/government was aware and seized of the basic facts and circumstances constituting the offences with which appellants are charged and had the whole material record and evidence gathered by the investigating agency, before it. The sanction is the outcome of conscious exercise and due application of mind to the facts and circumstances of the case with regard to the offences with which appellants are charged. The appellants have not placed anything on record to establish contra, to rebut the presumption of due and legal sanction to prosecute the concerned accused/Writ petitioners. The contention of the counsel on this score obviously is negated.
32. The contention of Mr. M.H. Attar, AAG, that the writ for quashment of lodging, processing and investigations of the cases cannot succeed on disputed facts, when the respondents are disputing the correctness of the material and documents, annexures to the writ petition, relevant and favourable to the petitioners is of substance. The writ annexures collectively marked as 'F' (10 leaves), 'H' (5 leaves with photographs pasted on 3 sheets) and 'L' (representation of appellant No. 1) in terms of final" report of the police are not part of the police report and not relied upon by investigating officer. Only Sartaj Singh Bali and G. M. Sheikh AEEs, P.H. Sub Div. Kupwara Rajwar and Sogam involved in FIR No. 119/98 (supra) appellants 2 and 3 furnished the replies to questionaire of Investigating Officer by way of an explanation. Treating and admitting the annexures as evidence and then appreciating its evidentially value, lies beyond jurisdiction of this Court in exercise of its writ jurisdiction. It is the duty and judicial function of a criminal Court to appreciate and evaluate the evidential value of these annexures once questions of their admissibility is decided. It is apt to take note of para 20 from P.P. Sharma's case (1991 Cri LJ 1438) (SC) (supra) as under :-
20. We do not wish to express any opinion on the rival contentions of the parties based on their respective appreciation of material on the record. We have quoted "the annexures", the inferences drawn by the High Court and the factual assessment of Mr. Sibal, only to show that the High Court fell into grave error in appreciating the documents produced by the respondents along with the writ petitions of facts in its jurisdiction under Article 226/227 of the Constitution of India.
33. Consideration of matter on merits in the guise of prima facie evidence to stand an accused for trial amounts to pre-trial of a criminal trial under Article 226 or 227 even before the competent Magistrate or Session's Court takes cognizance of the offence.
34. Again to quote from P.P. Sharma's case (1991 Cri LJ 1438) (SC) (supra), it is observed :-
68. ...This would show that an accused with a view to delay the trial, resorts to writ proceedings, raises several contentions including one on merit as vehemently persisted by Sri Jain to consider this case on merits and have the proceedings kept pending. The result would be that the people would lose faith in the efficacy of rule of law. Documents relied on by the respondents are subject to proof at the trial and relevancy. If proved to be true and relevant then they may serve as a defence for the respondents at the trial. The State quite legitimately and in my view rightly did not choose to file the counter-affidavit denying or contradicting the version of the respondents, in those documents. The commission of offence cannot be decided on affidavit evidence. The High Court has taken short course "in annihilating the still born prosecution" by going into the merits on the plea of proof of prima facie case and adverted to those facts and gave fidings on merits. Grossest error of law has been committed by the High Court in making pretrial of a criminal case in exercising its extraordinary jurisdiction under Article 226....
35. In result, we therefore, dismiss the appeal and affirm the judgment and order of dismissal of the writ petition. We have avoided to go into merits of the case and refrained from expressing any view eitherway in order to obviate prejudice to the case(s) of the prosecution or defence.