Jammu & Kashmir High Court
Unknown vs Of Jammu And Kashmir At Srinagar
Author: Muzaffar Hussain Attar
Bench: Muzaffar Hussain Attar
OF JAMMU AND KASHMIR AT SRINAGAR 561-A No. 45 of 2007 S. Surjeet Singh Petiotioner State of J&K and ors. respondents !Mr. Z.A. Qureshi, Advocate ^Mr. M.A. Rathore, AAG Hon'ble Mr. Justice Muzaffar Hussain Attar. Date: 22/122008 : 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 dazzling heights. Most children of our times sacrifice much time of their lives by not only working hard but literally burning the candle on both ends to emerge victorious in this highly competitive world. But unfortunately valueism has lately got in some cases transformed into materialism. People have started living only for this world, which all of us know is temporary phenomenon. Some amongst us, however, in pursuit of abounding in worldly possessions have cast to winds the settled principles and norms of life. On the prosecution allegations, the case in hand throws-up one such glaring example. Here on the one hand is a child who seems to have sacrificed everything for attaining excellence in the field of academics, whereas on the other hand, a person, who is charged and entrusted for conducting examination in most fair and honest manner has as per case of the prosecution ripped to shreds the faith and confidence reposed in him. Going by the prosecution case, which of course is subject to proof at trial, that too beyond all shadow of doubt, the future of not only a child, not only a family, but of nation is put to jeopardy by blind greed of an individual. If the offence is proved at the trial the guilty deserves to given exemplary punishment so as to make the message loud and clear that there cannot be any compromise about the progress of future generations in different walks of life.
Where shall the money power push our younger generation in such circumstances, is a question which begs answer. The right of one meritorious, poor and hapless student is passed on to other undeserving student, such incidents if not nipped in the bud, will produce a nation of corrupt block-
heads. The frustrated youth may be thus lured into unwilling trap of crime, and what not. The greed of one person will thus play havoc with body politic of whole nation and will end up into what English jurist and parliamentarian Edmund Burkee in 1777 has said and I quote;
"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 received in Police Station, Vigilance Organization, Kashmir from one Irshad Ahmad Kar alleging therein that one S. Surjit Singh, invigilator of examination centre no. 862 located in Woodland High School, Sonawar Srinagar, where the complainant's daughter Ms. Tabinda Irshada was taking 12th class examination, demanded Rs. 3000/-from the daughter of the complainant for rendering her illegal services in the said examination. The accused had further threatened Ms Tabinda Irshad that in case amount demanded is not paid then any damage can be caused to her answer sheets.
Ms. Tabinda Irshad, informed her father, the complainant about what had happened in the school on 13th of November, 2005 when Ms. Tabinda Irshad had reported in the centre for taking her 12th class examination. Ms. Tabinda Irshad told her father, complainant, that as she has worked very hard and believe in leading honest life, she would not give any money to the accused. The complainant, who in his complaint has stated that he believes in honest dealings in life, made a complaint to Vigilance Organization, Kashmir, who in turn undertook pre-trap proceedings and the accused was allegedly caught red handed, and demanded amount of Rs 3000/- was recovered from him.
The accused was working as Supervisor/Inspector as per prosecution case. It is further revealed that accused was working as Supervisor/Inspector of the centre where daughter of the complainant was taking 12th class examination. After completion of the investigation, prosecution filed report under section 173 in the court of Special Judge Anti-Corruption, Kashmir in case FIR 33 of 2005. The trial court after hearing the learned counsel for the prosecution and learned counsel for the accused vide its order dated 22nd of May, 2007 ordered for framing of charge against the accused for the offences punishable under section 5(2) Prevention of Corruption Act, read with under section 3/5 Prevention of Unfair Means Act 1987. The charge sheet was also read over and explained to the accused on the same date by the trial court. The accused has filed this petition under section 561-A Cr.P.C. seeking quashment of the order dated 22nd of May, 2007 passed by trial court on the grounds summarized as under:
(1) The order of framing of charge against accused is bad as no sanction has been obtained from the competent authority before filing of the charge against accused. (2) The accused can be deemed to be public servant under section 10 of Prevention of Unfair Means Examination Act but not under the provision of Prevention of Corruption Act. The accused being employee of an un-aided private school though charged with duty of conducting examinations which are being conducted by Jammu and Kashmir State Board of School Education, is not government employee as such no proceedings can be taken against him. The accused has not been appointed by competent authority as supervisor/inspector of the concerned examination centre. (3) The instruction issued by Assistant Secretary vide order dated 10-10-2005 cannot confer power on the superintendent to engage his staff which includes the accused as well.
(4) The accused is deemed to be appointed as public servant by an oral order.
There being no order of termination of his services, the sanction under section 6 of Prevention of Anti-
Corruption was pre-requirement of law for filing challan against him. (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 according to accused is lacking in the present case. (6) That in terms of section (3) of the Jammu and Kashmir Unfair Means Act procedure provided for trying the accused is laid under section 259 of Code of Criminal Procedure and the Special Judge Anti Corruption being not Special Judge for the said Act cannot try the petitioner.
Before dealing with the submission made by the learned counsel for the petitioner-accused one may not lose sight of the fact that the 12th class examination and the results thereof become basis for students to shape their future career. The students who in order to not only shape their future but also shape future of their nation, work very hard and even sacrifice their childhood and youth for making such achievement. The uncouth and nefarious designs of some unscrupulous elements of the society to provide illegal assistance being in the positions of Supervisors of the examination centre are not only committing heinous offences but playing havoc with the future of our future generations. The offence against such persons if proved in appropriate proceedings deserve to be given exemplary punishment.
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 negative language. This Section is reproduced as under:-
"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 necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
Section 435 Code of Criminal Procedure after it was amended in the year 1978 Sec. 4(a) was inserted in the said section which reads as under:
"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 appeal, inquiry, trial or other proceedings."
A Division Bench of this Court had an occasion of considering the impact of said amended provisions on the interlocutory orders passed by trial court. The judgment is reported in "1982 KLJ 1" . The said judgment interalia provided that framing of charge is an interlocutory order and cannot be challenged in the revision petition. The Division Bench, however, added that if challenge to the framing of charge is made, not on the merits of controversy involved in the case, but independent of that, and the plea of the accused if accepted, would render dismissal of the case against him, then on such grounds order of framing of charge can be challenged by filing of revision petition.
Inherent power of this Court, however, is not limited by any such legal constrains and no such legal inhibition can be read into the inherent powers of this Court. This Court in order to give effect to any order under the Code of Criminal Procedure or to prevent abuse of process any court, or otherwise to secure the ends of justice can exercise its inherent powers.
The issue raised by the petitioner, if accepted, and if would result in his discharge, in such circumstances even a revision petition is held to be competent to challenge the order which is impugned in this petition. But in view of discussion made herein after and result thereof, that remedy would have not been available to petitioner In order to deal with the submissions of Mr. Z.A. Qureshi, learned counsel for petitioner it becomes imperative and necessary to refer to relevant provisions of the Act of 1987 and provisions of Corruption Act. The J&K (Prevention of Unfair means) Examination Act 1987, in brief referred to Act of 1987, in its preamble states that it is an Act to regulate the conduct of examinations and to provide for punishment of unfair means used or committed in such examination.
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 School Education Act, 1975;
(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, evaluation, processing of examination, results and certification thereof;
(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 examination centre and submit its report to the competent authority about the conduct of examination of each such examination centre:"
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 the regulations, as the case may be;
(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 centre.
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 behalf;
(ii) no Court shall take cognizance of any offence under this Act except on a complaint lodged by the competent authority or an officer authorized by the competent authority;
(iii) all offences under this Act shall be triable in accordance with the procedure laid down under section 259-A of the Code of Criminal Procedure, Samvat 1989."
"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 regulations as the case may be."
"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 of the Ranbir Penal Code."
"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 more effectively dealing with bribery and corruption.
Section 2 of the Act of 2006 provides that for the purpose of this Act the expression "public servant" means a public servant as defined in Section 21 of the State Ranbir Penal Code and shall include,- the relevant part of the section is reproduced as under:-
"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 the Council of Ministers;
(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 established by or under an Act of the State Legislature or of Parliament in force in the state."
Section 5 of the Act 2006 which defines criminal misconduct for the purpose of disposal of this case relevant part thereof is reproduced as under:
"(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 other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the State Ranbir Penal Code, Samvat 1989;
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the persons so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(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 possession, for which the public servant can not satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
The petitioner, it is stated at the time he was asked to, to be the part of the Supervisory staff of examination centre No. 862 Wood-land High School, Sonawar Srinagar, was an employee of the said School, which is claimed to be an unaided private school. The Board of School Education which is the competent authority acts through its Officers and in this case the competent authority acted through Assistant Secretary who vide his communication no. F9Sup-Kd-Exam ) 05 New Campus Bemina dated 10th Oct. 2005 requested Vijay Mishry to appoint supervisory staff of the examination centre No.862 Woodland High School, Sonawar Srinagar. The petitioner was appointed as Inspector/supervisory staff in pursuance of the said authorization of J&K Board of School Education. The petitioner in such circumstances has been appointed by the competent authority as Inspector/part of Supervisory Staff for examination centre No.
862. The contention of the learned counsel for petitioner that the petitioner has not been appointed by any competent authority pales into in-significance and merits rejection.
The learned counsel for petitioner has challenged the order of framing of charge against the petitioner by taking diametrically opposite stand viz on the one hand, the learned counsel submits that the petitioner at the relevant time was an employee of an un-aided school and was not as such a public servant. In the submission of learned counsel for petitioner, the provisions of Act of 2006 and Act 1987 could not be invoked against him as he being not a public servant. On the other hand, the learned counsel submits that no cognizance could be taken in respect of offence alleged to have been committed by the accuse petitioner as no sanction has been obtained from the competent authority before launching of prosecution against the petitioner. The submission though mutually destructive of each other, however, fall to ground lock, stock and barrel for the following reasons and on the following legal grounds.
Section 10 of the Act 1987 mandates that every person in the engagement of conducting of examination shall be deemed to be public servant, within the meaning of Section 21 of RPC. The expression "every person" used in this section makes it writ large on the face of the statute and in order to place proper interpretation and construction to make it in tune with the purpose sought to be achieved by enacting Act of 1987, it can be well said that even a private person who is not connected in any manner whatsoever in the affairs of the State, even a person who is working in a private un-aided institution when engaged in the conduct of examination, by the application of Section 10 of Act 1987 automatically becomes public servant within the meaning of Section 21 RPC. Section 10 of the Act 1987 becomes an added clause of section 21 RPC.
The petitioner in view of the fact that he was engaged to conduct the examination is deemed to be public servant within meaning of Sec. 21 of RPC.
Section 2 of Act 2006, provides, that, for the purpose of said Act, "Public servant" means a public servant as defined in section 21 of RPC.
The petitioner in view of this lucid and explicit statement of the legislature made in section 2 of Act of 2006 is a public servant for the purpose of Act 2006 as well, as because, section 10 of Act 1987 deems petitioner to be a public servant within the meaning of Section 21 of RPC.
A conjoint reading of above said provisions admit of no doubt or ambiguity about petitioner's being public servant both for the purpose of Act 1987 and Act 2006.
Now turning to next ground of challenge, which has been projected about failure of prosecution to obtain sanction for launching prosecution against the petitioner. The very fact that the engagement/appointment of petitioner as Inspector/member of Supervisory staff for conducting examination in centre 862 located at Woodland High school, Sonawar Srinagar, by the very nature of the duty to be performed was only for the period for which the examination was to be conducted.
The nature of his very engagement was coterminous with the completion of examination itself. By nature of the very engagement the petitioner ceased to be a public servant when the examination was over.
Section 6 of the act of 2006 provides, that no court shall take cognizance of an offence punishable u/s 161, or section 164 , Section 165 or 167-A or sub section (3) of section 5 of the act 2006, alleged to have been committed. The relevant part of section 6 is reproduced as under:-
"No court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 or section 167-A of the State Ranbir Penal Code, Samvat 1989 or under sub-section (2) or sub-section (3) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction:-
(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 save by or with the sanction of the Government;
(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 sanction as required is issued by the competent authority. Section 6 of the Act 2006 has no relevance for conducting of investigation and only prohibits the court of competent jurisdiction to take cognizance of offence unless there is previous sanction issued by competent authority necessary for the prosecution of the accused. At the time when the challan was filed against the petitioner admittedly, he had ceased to be a public servant, and no previous sanction necessary for prosecution was required to be obtained.
The Honb'ble Supreme Court in case titled state of Kerala (appellant) v Padmanabhan Nair (Respondent) reported in (1999) 5 SCC 690 has held that the accused facing prosecution for offence under PC Act cannot claim any immunity on the ground for want of sanction, if he ceased to be a public servant, on the date when the court took said cognizance. Para 6 is reproduced as under:-
"Para 6. The correct legal position, therefore, is that an accused facing prosecution for offences under the PC Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. So the High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the PC Act. "
The Hon'ble 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 to take cognizance of the offence and if the accused is ceased to be public servant, no previous sanction is necessary in such situation. Para 4 of judgment is reproduced as under:-
"Para 4. This Court in Kalicharan Mahapatra v. State of Orissa has held that if a public servant has ceased to be public servant at the time the court is called upon to take cognizance of the offence, no previous sanction is necessary. This Court also referred to its previous decision in R. Balakrishna Pillai v. State of Kerala on which reliance has been placed by the High Court for taking the contrary view and has pointed out how that judgment can be of no relevance where the offence alleged is an offence punishable under the Prevention of Corruption Act, 1947. In para 13 of the judgment this Court has specifically dealt with this aspect. Thus, the law on this point is quite clear that in case of a public servant who is alleged to have committed an offence punishable under the Prevention of Corruption Act, no previous sanction would be required if by the time the court is called upon to take cognizance of that offence he has ceased to be public servant. The High Court was wrong in taking the contrary view. This appeal is, therefore, allowed, judgment and order passed by the High Court are set aside and the trial court is directed to proceed further with the trial of the case."
Another ground projected by learned counsel for petitioner is that Special Judge Anti-
corruption Srinagar was not competent to take cognizance of the offence u/s 3/5 of the Act of 1987, which cognizance of the offence could be taken only on a complaint filed by the authority mentioned in the Act of 1987. It was further submitted that under the Act 1987 the procedure provided for conducting trial is section 259 (a) Code of Criminal Procedure. To answer this submission reference is required to be made to the J&K Criminal Law amendment Act 1958, in brief Act of 1958.
Section 6 of the Act of 1958 provides, that Government may, by notification in the Government Gazette, appoint as many Special Judges as may be necessary for such area or areas as may be specified in the notification to try the offences punishable under sections 161, 165 or 165- A of the Ranbir Penal Code, of sub section (2) of section 5 of the Prevention of Corruption Act, 2006. Section 7 of the Act of 1958 is reproduced as under:-
"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 the accused may, under the Code of Criminal Procedure, 1989, be charged at the same trial.
Sub section (3) of section 7 clothes Special Judge with powers to try any offence other than an offence specified in section 6 with which the accused may, under the Code of Criminal Procedure, 1989, be charged at the same trial. The special Judge Anti Corruption thus gets jurisdiction to try the accused for commission of offence under Act of 1987 as well. The said purposive interpretation requires to be placed on the said provisions as the laws are enacted and institutions created for the benefit of society as a whole. The ground of challenge so made about the conduct of trial by special judge of offence u/s 3/5 of Act 1987 also fails. The xerox copy of record further reveals that at the request of Vigilance Organisation, J&K State Board of School Education has also made a complaint under section 3/5 of the Act 1987, which is part of the record before trial court, and accordingly the trial court has took cognizance of the said offence as well. The trial court under these circumstances has legally and validly framed the charge against the accused for commission of offence u/s 5(2) of Prevention of Corruption Act read with section 3/5 Prevention of Unfair means Act 1987.
The learned counsel for petitioner has referred to judgment of the Supreme court titled State of Gujrat appellant v. I. Manshankar Prabhsha Nair Dwivi, reported in 1973 SC 330, to support his contention that the petitioner though charged with the duty of supervising examination cannot be said to be Public Servant. The facts of the said case are materially different from this case in as much as a senior lecturer of Government College was appointed as an examiner to conduct Physics practical examination which was to be held by Gujrat University. The Hon'ble Supreme Court after considering the matter held that the said accused was not public servant within definition of 21 of Indian Penal Code. In the said case, there was no law projected or shown that by a Special statute the person engaged for conducting of examination was to be deemed to be a public servant.
The said judgment in the facts of the present case does not support the contention of the petitioner. The petitioner has further relied upon judgment titled State of Orrisa appellant v.
Birakishore Naik respondent reported in AIR 1964 Orrisa 202. In the said case son of Extra Departmental Agent of Post office looked after father's official duty without any recognition or appointment by postal department. It was held that he had no right to hold the post and, therefore, could not be said to be public servant. The said judgment turns on its own facts which are materially different from facts of the case in hand. As in this case on the orders of the competent authority services of petitioner were engaged for conducting of examination and in terms of section 10 of the Act 1987, as already held that the petitioner is deemed to be public servant.
On the grounds and for reasons stated above in order to secure the ends of justice it is lawful that trial court shall proceed against the accused in accordance with law. The Criminal Justice system in order to be reinvigorated demands expeditious disposal of the criminal cases. The expeditious disposal of the criminal cases has been held to be a fundamental right guaranteed under article 21 of the Constitution. It is in public interests also to decide the cases more particularly criminal cases at the earliest. Accused if found guilty at the end of the trial shall be punished properly, and if found innocent shall be declared so at earliest. This is in over all interests of society.
In the upshot of what has been discussed above, this petition under section 561-A fails and is dismissed. The order framing charge against petitioner in held to be legal. The trial court is directed to proceed with the case in accordance with law.
(Muzaffar Hussain Attar) Judge Srinagar 22.12.08 Ayaz