Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Peer vs State Of Jk on 8 August, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
MP No. 01/2018 in
CRA No. 34/2018
Date of Order: 8th of August, 2018.
Mushtaq Ahmad Peer
Vs.
State of J&K.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Appellant(s): Mr Z. A. Qureshi, Senior Advocate with
Ms Zehra Abrar, Advocate
Mr M. M. Iqbal, Advocate.
For the Respondent(s): Mr B. A. Dar, Sr. AAG.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. The applicant/appellant Mushtaq Ahmad Peer, the then Chairman, Board of Professional Entrance Examination (hereinafter referred to as the "BOPEE"), has filed this application, being MP No. 01/2018, seeking suspension of the sentence awarded to him, alongside the appeal against the judgment dated 25th of April, 2018, of the Court of learned Special Judge, Anti-Corruption, Kashmir, Srinagar, whereby he has been convicted and sentenced to undergo rigorous imprisonment for a period of five years, the maximum term provided for an offence under Section 5(1)(d) read with Section 5(2) of the Prevention of MP No. 01/2018 in CRA No. 34/2018 Page 1 of 11 Corruption Act (as reduced from seven years to five years vide Act No.8 of 2014 dated 22nd of March, 2014) and a fine of Rupees one Crore. He has also been sentenced to undergo rigorous imprisonment of three years for an offence under Section 409 RPC and seven years for the commission of an offence under Section 420 RPC and for a further period of one year under Section 120-B RPC.
02. The background facts of the case, in a nutshell, are that during the course of the second session of the first day of the Jammu & Kashmir Common Entrance Test (for short the "JKCET"), 2013, conducted by the BOPEE, for attracting and selecting the best brains for undergoing various professional courses in the State in the hope of a vibrant future, instead of the papers of Chemistry, the question papers of Biology of a particular series were distributed in as many as five examination centers which lead to the cancellation of the Chemistry paper and the postponement of the Biology paper to be conducted on the next date. This news spread like a wild fire and it lead to a widespread resentment amongst the aspirants. It was flashed both in the print as well as in the electronic media, as a consequence of which, the High Court took suo moto cognizance of the matter. It sought response from the Government as well as the other functionaries, including the Chairman, BOPEE. The Court took a serious view of the matter. It issued a slew of directions including the one to the Chief Secretary of the State of Jammu and Kashmir for initiating an inquiry into the causes and reasons behind the incident leading to the cancellation/ postponement of the papers of the J&K CET, 2013, as also to hold the examination as per the new schedule in the most fair and transparent manner. A report was sought from the Vigilance Organization also as to whether, or not, any action has been taken thereon since the Amicus Curiae in the case, Mr B. A. Bashir, the learned Senior Advocate, had apprised the Court that there were MP No. 01/2018 in CRA No. 34/2018 Page 2 of 11 reports of sale of the question papers of the JKCET, 2012 before the scheduled dates against huge monetary considerations, but nothing was done by the Vigilance Organization as well as the Crime Branch, Kashmir, the two premier Investigating Agencies of the State, despite specific complaints.
03. According to the Prosecution story, it came to be noticed, during the preliminary verification, that the results of the JKCET, 2012 had surprised a number of aspirants for the reasons that a good number of candidates from a particular district with insignificant merit in the qualifying examinations had not only qualified the examination but had also made it to the top ranks in the select list. It led to widespread public outcry and resentment against the fairness and genuineness of the examinations and some of the unsuccessful students even lodged their complaints as well. The notion got further strengthened when most of those top-ranking candidates in the JKCET, 2012, failed in the internal session examinations and were not allowed to sit in the 1st year of the MBBS examination by their respective Colleges. During the course of preliminary verification, one of the successful candidates in the JKCET, 2012, namely accused No. 18, Naveed Ahmed Bhat, upon questioning could not even spell correctly the word 'Chemistry'. It further came to the fore that one of the accused persons, namely Farooq Ahmad Itoo (turned to be an approver), who had been running a Computer Centre under the name and style of 'M/S Info- tech Computers at Bijbehara', was a close associate of accused No.1, namely, Mushtaq Ahmad Peer/ i.e. the applicant/ appellant herein, who had made the question papers of the JKCET, 2012 available to some candidates of a particular area in advance through his associates, touts, and parents of the aspirants against huge monetary considerations. Upon receipt of the report of the preliminary verification, the IGP, Crime, ordered the registration of the FIR and holding of a MP No. 01/2018 in CRA No. 34/2018 Page 3 of 11 detailed investigation. It led to the registration of the FIR No. 24 of 2013 on 24th of September, 2013, for the commission of the offences punishable under Sections 420, 120-B of the RPC and 5(1)(d) r/w 5(2) of the Prevention of Corruption Act and the investigation ensured which was entrusted to a specially constituted team of Officers, headed by Dy.SP, Bashir Ahmad Dar. During the course of the investigation, what got revealed is that the approver, Farooq Ahmad Itoo, came in contact with the applicant/ appellant Mushtaq Ahmad Peer in the year 2001 when the latter, as Head of the Department of Computer Sciences, University of Kashmir, went to inspect the computer institute of the former for its registration with the National Council for Promotion of Urdu Language, New Delhi. Thereafter, the approver started visiting the applicant/ appellant Mushtaq Ahmad Peer and they developed intimacy and friendly relations with the passage of time. The approver started visiting applicant/ appellant Mushtaq Ahmad Peer at regular intervals with gifts and freebees and, later on, when the applicant/ appellant Mushtaq Ahmad Peer was posted as the Chairman BOPEE in February, 2008, the approver got the opportunity to seek favours in the selection of his candidates for the MBBS course on monetary considerations, which the applicant/ appellant Mushtaq Ahmad Peer accepted readily for their mutual benefit. Finally, a criminal conspiracy came to be hatched by the applicant/ appellant Mushtaq Ahmad Peer and the approver, somewhere in March-April, 2012, when the applicant/ appellant Mushtaq Ahmad Peer took the charge of the Controller Examination from Dr. Gopal Gupta on 29th February, 2012 upon latter's superannuation. Under this well-knit conspiracy, the applicant/ appellant Mushtaq Ahmad Peer agreed to provide the copies of the question papers together with answer keys etc. to the approver in lieu of the payment of Rs.60,00,000/- (Sixty lac rupees) for further providing it to the potential candidates aspiring for admission to MBBS in advance of the MP No. 01/2018 in CRA No. 34/2018 Page 4 of 11 scheduled date of the examination. The approver Farooq Ahmad Itoo, in turn, started searching for the potential candidates. He contacted his friend and co- accused Sajjad Hussain Bhat, who was already in the business of facilitating admissions in various Medical Colleges outside the State, and struck a deal for providing him the papers in advance upon a consideration of Rs.30,00,000/- (Rupees thirty lacs). In the process, the approver made direct deals with nine candidates against payments of varied amounts of consideration.
04. The applicant/appellant has filed this application for the suspension of sentence awarded to him and for his release on bail, on the grounds, inter alia, that he is 70 years of age and has been sentenced by the learned trial Court to undergo rigorous imprisonment for a period of five years, the maximum term provided for offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act (as reduced from seven years to five years vide Act No.8 of 2014 dated 22nd of March, 2014 and a fine of Rupees one Crore. He has also been sentenced to undergo rigorous imprisonment of three years for offence under Section 409 RPC and seven years for the commission of offence under Section 420 RPC and for a further period of one year under Section 120- B RPC. The learned trial Court has directed that these sentences shall run consecutively. He is lodged in the Central Jail, Srinagar and due to mental agony and trauma, through which he has undergone, during all this period, his health has deteriorated to a great extent and he needs constant medical care. It is further stated by the applicant that he has filed an appeal against the judgment of conviction and sentence passed by the learned trial Court. During the trial of the case, he was in custody for more than two years, whereafter he was released on bail. There is no male member in his family to look after his spouse. He is blessed with two daughters, both of whom are married and are living with their MP No. 01/2018 in CRA No. 34/2018 Page 5 of 11 husbands. He is suffering from Diabetes, Hypertension and Heart Disease like unstable Angina. He was admitted in SKIMS, Srinagar where he was advised frequent check-up and medication. He is innocent and has not committed any offence. The entire case is based on the statement of the approver. The learned trial Court has relied upon the evidence which is inadmissible in law. He has been fined to pay an amount of Rs. One crore in absence of any evidence on record. In the premises, it is urged that the judgment dated 25 th of April, 2018 passed by the Court of learned Special Judge Anti-Corruption, Kashmir, Srinagar, in case bearing FIR No. 24/2013, of Crime Branch, Srinagar, for the commission of offences punishable under Sections 420, 406, 201, 120-B of the RPC read with Section 5(1)(d) of the Prevention of Corruption Act be stayed and the sentence recorded against him be suspended.
05. Heard and considered.
06. A passage in the 'Righveda' provides that 'the one who harms an innocent person is no man, but a Wolf; keep away from him'. 'Etherveda 4.36.2' commands that 'we must destroy, completely crush and burn to ashes those wicked persons who are bent upon eliminating such brave men who fight and vanquish the cruel animal'. The need to quote the above is felt in view of the peculiar facts and circumstances of the case on hand, where it is proved, after a full-fledged trial, that the applicant/appellant, in the capacity of the Chairman, BOPEE, violated the trust of the brilliant brains with impunity for the lust of money which depicts that human greed knows no limits. It portrays a sad and sordid state of affairs. The applicant/appellant put to sale the question papers of the JKCET, 2013, conducted by the BOPEE, a statutory body, created under a Statute, the Jammu & Kashmir Board of Professional Entrance Examination Act, 2002, for selecting and attracting the best brains for MP No. 01/2018 in CRA No. 34/2018 Page 6 of 11 undergoing various professional courses in the State in the hope of a vibrant future, but none other than the person occupying the highest position in the Board, in what could be considered as a worst kind of betrayal of confidence reposed by one and all including the Government and the public at large, betrayed the trust. The acts of omission and commission on the part of the applicant/ appellant did not spare even the son of a truck driver, whose name was published in the select list, but was, later on, told that it was the outcome of a mistake. It happened only because of the fraud played and committed by the applicant/ appellant. He developed contacts with the approver, namely, Farooq Ahmad Itoo, who was a frequent visitor to his house with gifts and freebies. He agreed to provide the copies of the question papers together with answer keys to the approver, who was running a computer center at Bijbehara. The applicant/appellant provided the question papers and the answer keys to the approver, who made these available to the candidates, who were selected for undergoing the course of MBBS against monetary considerations, which is stated to be Rs. 60,00,000/- (rupees sixty lacs) that were paid to the applicant/appellant. It will be relevant to reproduce the findings that the learned trial Court has recorded against the applicant/appellant. These read as under:
"646. The accused No.1 Mushtaq Peer, being at the helm of affairs as Chairman of the Board, occupied the top position which he has abused to the fullest by orchestrating the criminal conspiracy for putting on sale the question papers, the secrecy of which he was under obligation to maintain. This dastardly crime is his brainchild and it would not have been possible for the others to have even a glimpse of the question papers had he not defied the state by throwing to winds requisite standards of probity expected from a public servant of his caliber and stature having served as teacher at highest level for the maximum part of his career and chosen to hold the coveted position even after his superannuation. The conspiracy was planned so conspicuously by the accused-1 who took full advantage of the experience of years acquired by him as to the trends in results of previous years by not providing the complete sets of question papers so as to guard against any possible suspicion. The kind of duplicity MP No. 01/2018 in CRA No. 34/2018 Page 7 of 11 exhibited by him is further evident from the two different styles of signatures put in by him at the time of his examination when handed down the charge and further examination under section 342 CrPC.
647. The conduct of this accused in joining hands consciously with the brokers for putting the question papers of entrance examination on sale amounts should attract all revulsion being a blatant abuse of his official position of the worst kind, besides, the breach of the trust and utter betrayal of the confidence reposed by the Government of the time who in him by choosing him for the coveted position even after his superannuation and the kind of fraud played by him with the careers of thousands of meritorious students as well as their parents who had all alone toiled hard and burnt midnight oils for making it to the merit list. Further, far from showing any remorse for what he did, he has no hesitation in blaming the then Hon'ble Chief Minister for his involvement into this case. He has further, shaken the confidence of the public at large into the fairness of the working of such statutory bodies which, it would take years of concerned efforts to restore, as such incidents leave a deep imprint on the minds of the public at large, besides, an occasion to the wily elements to exploit the situation for their advantage by citing such examples. These are some of the reasons for large scale brain drain from the state and the other law and order problems faced by the State in the contemporary times. Therefore, this accused deserves no leniency at all.
07. The law on the point is lucid and clear. The Apex Court of the country in the case of "Vinod Bhandari v. State of Madhya Pradesh", reported in "2015(11) SCC 502", has dealt on the subject quite efficaciously and Paragraph No. 17 of the said judgment fits to a "T" to the instant case, which is reproduced below, verbatim et literatim:
17. In the light of above settled principles of law dealing with the prayer for bail pending trial, we proceed to consider the present case.
Undoubtedly, the offence alleged against the appellant has serious adverse impact on the fabric of the society. The offence is of high magnitude indicating illegal admission to large number of undeserving candidates to the medical courses by corrupt means. Apart from showing depravity of character and generation of black money, the offence has the potential of undermining the trust of the people in the integrity of medical profession itself. If undeserving candidates are admitted to medical courses by corrupt means, not only the society will be deprived of the best brains treating the patients, the patients will be faced with undeserving and corrupt persons treating them in whom they will find it difficult to MP No. 01/2018 in CRA No. 34/2018 Page 8 of 11 repose faith. In these circumstances, when the allegations are supported by material on record and there is a potential of trial being adversely influenced by grant of bail, seriously jeopardising the interest of justice, we do not find any ground to interfere with the view taken by the trial Court and the High Court in declining bail.
Applying the ratio of the law laid down above to the facts of this application, the acts attributed and imputed to the applicant/appellant in the judgment of conviction and sentence recorded by the learned trial Court are of a high magnitude indicating illegal admission to a large number of undeserving candidates to the medical courses by adhering to corrupt practices. The offences committed by the applicant/appellant, as is repeated here, have the potential of undermining the trust of the people in the integrity of medical profession itself. These depict and portray a complete depravity of character. The undeserving candidates admitted in this noble profession will have the impact of depriving the best brains treating the patients. The patients cannot repose faith in the corrupt persons treating them.
08. The Supreme Court of India, in the case of "State of Maharashtra v. Balakrishna Dattatrya Kumbhar", reported in "(2012) 12 Supreme Court Cases 384", has again delved over the subject under consideration herein this application and Paragraph Nos.10 and 15 of the said judgment, which are relevant for consideration, are reproduced below, word for word and letter and letter:
"10. In State of Tamil Nadu v. A. Jaganathan, AIR 1996 SC 2449, this Court dealt with a case wherein the High Court stayed the order of conviction for the sole reason that, in absence of such a stay, the accused was likely to lose his job. This Court reversed the impugned order therein observing:
"3. ...... the High Court, though made an observation but did not consider at all the moral conduct of the MP No. 01/2018 in CRA No. 34/2018 Page 9 of 11 respondent..... who was the Police Inspector....had been convicted underSections 392, 218 and 466 I.P.C. while the other respondents, who are also public servants, have been convicted under the provisions of the Prevention of Corruption Act. In such a case, the discretionary power to suspend the conviction either under Section 389 or under Section 482 Cr.P.C. should not have been exercised. The order impugned, thus, cannot be sustained."
15. Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that, the Appellate Court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the Court as regards the evil that is likely to befall him, if the said conviction is not suspended. The Court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examined whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done."
09. The law on the subject, as detailed above, is limpid and lucid. Conviction of a public servant, convicted in corruption cases, cannot be suspended just on the asking of it, as doing so will have adverse impact on the public interest. The pleadings of the applicant/appellant have to be scrutinized minutestly and judiciously. All the pros and cons have to be scanned and analyzed and, it is only then, that a conviction can be suspended. Corruption undermines the human rights and indirectly violates them. It is only if the Court feels satisfied that a case has, in fact, been made out that the conviction can be suspended. It is only in exceptional cases that a conviction can be put in abeyance alongwith the sentence. Such power has to be exercised with great circumspection and caution and, for that purpose, the applicant/ appellant has to satisfy the Court as regards the evil likely to befall him, if the said conviction is not suspended. The offences committed by the applicant/appellant have a serious adverse impact on the fabric of the society. His actions have not even spared the son of a truck driver who had made the grade, but was shown the exit on flimsy grounds. He MP No. 01/2018 in CRA No. 34/2018 Page 10 of 11 would have been aspiring to become a Doctor, but, in the need and greed of earning undue pecuniary gains on the part of the applicant/ appellant, he, too, has not been spared and, therefore, in my considered opinion it is not a fit case where the judgment dated 25th of April, 2018, as passed by the Court of learned Special Judge Anti-Corruption, Kashmir, Srinagar, in case bearing FIR No. 24/2013, of Crime Branch, Srinagar, for the commission of offences punishable under Sections 420, 406, 201, 120-B of the RPC read with Section 5(1)(d) of the Prevention of Corruption Act, can be stayed and the sentence recorded against the applicant/ appellant suspended.
10. In view of the preceding analysis, the application of the applicant/appellant, being MP No.01/2018, seeking suspension of sentence is found to be devoid of any merit and, as a sequel thereto, the same is dismissed. However, what cannot be lost sight of is that speedy trial is a right of the applicant/ appellant and it is also in the interest of justice. The Court has to ensure speedy trial which holds true in an appeal also. Therefore, the learned Registrar (Judicial) of this wing of the High Court shall solicit directions from Hon'ble the Lord Chief Justice for listing of the matter before the appropriate Bench so that the appeal is heard and determined expeditiously. It also needs to be stated that the applicant/appellant shall be provided all medical care at regular intervals as he has contended that he is sick and is suffering from some diseases.
(M. K. Hanjura) Judge SRINAGAR 8th August, 2018 "TAHIR"
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