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Jammu & Kashmir High Court - Srinagar Bench

Prof Abdul Gani Bhat vs Commissioner Vigilance Organisation on 27 September, 2017

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

     HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR


561-A Cr. P. C No. 139/2017
                                         Date of decision: 27/09/2017
________________________________________________________________
Prof. Abdul Gani Bhat.  Vs.    Commissioner Vigilance Organization.
Coram:

         Hon'ble Mr. Justice Sanjeev Kumar, Judge.
Appearing counsel:
For Petitioner(s) :           Petitioner present in person.
For Respondent(s) :

       (i)   Whether to be reported in                     Yes/No
              Law Journals etc.
       (ii)  Whether approved for publication
             in Press.                                     Yes/No

__________________________________________________________________________________

1. In this petition filed under Section 561-A Cr.P. C, the petitioner has inter- alia called in question order dated 21-07-2016 passed in MP No. 1/2015 filed by the petitioner for recalling Judgment dated 03-09-2008 passed in OWP No. 702/2003. The petitioner has also prayed for setting aside the order of Special Judge, Anti-Corruption, Srinagar, passed on 16-12-2002 which was subject matter of challenge in OWP No. 702/2003.

2. Briefly stated the facts of the case are that, in the year, 1997, the petitioner appears to have filed a complaint with the Vigilance Organization, Kashmir against one Altaf Rehman, Assistant Physical Director, Islamia College, Srinagar and one Muzaffar Ahmed Khan, the then Director Colleges. The Vigilance Organization, Kashmir conducted a preliminary inquiry and consequently registered F.I.R No. 66/1997. However, upon investigation, the case was closed, as not proved. Accordingly, Ikhtitami was presented before Special Judge, Anti Corruption, Srinagar. The Ikhtitami was not accepted and 561-A Cr. P. C No. 139/2017 Page 1 of 7 the learned Judge vide its order dated 01-02-2001 directed the Vigilance Organization to get the matter further investigated by an Investigating Officer not below the rank of Deputy Superintendent of Police. In compliance to the order passed by Special Judge, Anti-Corruption, further investigation was undertaken by one Abdul Gafar Malik, who upon further investigation also closed the case as not proved. Once again, Ikhtitami was presented before the Court of Special Judge, Anti Corruption. The ikhtitami was accepted by the Court vide order dated 16-12-2002.

3. The petitioner, who was complainant before the Vigilance Organization, did not feel satisfied with the manner in which the investigation was conducted by the Vigilance Organization. He was also not satisfied with the manner in which the learned Special Judge, Anti-Corruption accepted the Ikhtitami and closed the case vide its order dated 16-12-2002. Aggrieved, the petitioner approached this Court through the medium of OWP No. 702/2003 and assailed the order of learned Special Judge, Anti-Corruption, Srinagar dated 16-12-2002 inter-alia, on the ground that before accepting the closure report learned Special Judge, Anti-Corruption did not put him to notice and, therefore, violated the valuable right of the petitioner to protest against the manner in which the investigation had been conducted by the Vigilance Organization and to lodge a protest petition before the Court.

4. The writ petition came up for consideration before this Court and vide order dated 03-09-2008, this Court dismissed the petition. The order of learned Special Judge, Anti-Corruption was upheld on merits. The petitioner did not accept the order passed by the learned Single Judge and preferred an appeal under Clause 12 of the Letters Patent which was registered as LPA No. 181/2008. The appeal aforesaid was also dismissed. During the course of hearing of the appeal, the Division Bench of this Court observed that the appeal was not maintainable against the order passed by a learned Single Judge in the exercise of its inherent powers vested with it under Section 561-A Cr.P.C.

Faced with the aforesaid position of law, the petitioner, who was appearing in person sought permission of the Division Bench to withdraw the Appeal with liberty to seek recalling of the order impugned in the Appeal before the learned Single Judge. The request of the petitioner was accepted and the Appeal was, accordingly, dismissed as not maintainable with liberty to the petitioner to seek recalling of the order of the learned Single Judge vide order dated 07-09-2015.

5. It appears that pursuant to the liberty granted, the petitioner filed an application for recalling of order dated 03-09-2008 passed in OWP No. 702/2003. The application was registered as MP No. 01/2015. The learned Single Judge of this Court vide its order dated 27-01-2016 dismissed the application.

6. The petitioner has once again approached this Court by way of instant petition invoking the inherent jurisdiction of this Court vested in it by virtue of Section 561-A Cr.P.C. The petitioner has assailed the Judgment of this Court dated 21-07-2016 and also the order dated 03-09-2008 passed in OWP No. 702/2003, inter-alia, on the following grounds :-

a) That order dated 03-09-2008 passed in OWP No. 702/2003 is not sustainable in law as the only point urged by the petitioner therein that he though a complainant at whose instance the investigation against the accused Altaf Rehman and anr. was initiated, was not heard before accepting the Ikhtitami submitted by the Vigilance Organization, was not considered by the learned Single Judge.

b) That the rejection of his application seeking recall of the order dated 03-09-2009 which was nullity in the eye of law was also erroneous as the learned Single Judge did not appreciate that the order of learned Special Judge, Anti-Corruption dated 12-12-2012 was nullity in law, as the same had been passed in valuation of principles of natural justice and that the illegality committed by learned Special Judge, Anti- Corruption was simply overlooked by the learned 561-A Cr. P. C No. 139/2017 Page 3 of 7 Single Judge and therefore, the order dated 03-09- 2008 too is nullity and therefore, was liable to be recalled.

c) That the learned Single Judge while hearing the application for recalling of the order, did not appreciate the distinction between "Review" and "Recall" and therefore, committed an error of law in rejecting his application seeking recall of order dated 03-09-2008.

7. The petitioner, appearing in person during the course of his arguments elaborated his arguments and has also referred the case law to bring home the point that there is a clear distinction between a „Review petition‟ and a „Recall petition‟. He, therefore, argued that in a Review petition the Court would consider on merits whether there was an error apparent on the face of record whereas, in a Recall petition, Court would not go into merits but would simply recall an order which is nullity having been passed in violation of principles of natural justice. In support of his arguments, the petitioner placed reliance on the judgments passed by the Apex Court in the cases of Vishnu Aggarwal V. State of U.P , ; A.I.R 2011 SC 1232, and Asit Kumar V. State of West Bengal and ors., ; 2009 (1) SCR 469. He, therefore, submitted that learned Single Judge, did not appreciate the fine distinction made by the Apex Court between the Review and Recall jurisdictions of the High Court. It was further argued by the petitioner that since the order passed by Special Judge, Anti-Corruption dated 12-12-2012 was nullity in the eye of law and, therefore, the order of the learned Single Judge dated 03-09-2008 upholding "null and void" order, too was a nullity and, therefore, the learned Single Judge should have accepted the application and recall the order which was nullity in the eye of law. The petitioner, however, could not satisfy this Court with regard to the maintainability of the petition under Section 561-A Cr.P.C for setting aside the order passed by this Court. This Court after hearing the petitioner in person had specifically directed the petitioner to first argue on the maintainability of this petition.

8. Considered the submissions made by the petitioner, appearing in person, and perused the record.

9. It is true, as argued by the petitioner in person that there is clear distinction between Review petition and Recall petition, as authoritatively held by the Hon‟ble Supreme Court. Review jurisdiction of the Court is available to review an order which suffers from an error apparent on the face of record, whereas, in a Recall petition, the Court would not go into the merits of the controversy but to simply recall the order which had been passed without giving an opportunity of hearing to an affected party. Generally, the jurisdiction to entertain recall petition is traceable to the extra ordinary jurisdiction vested in this Court under Article 226 of the Constitution of India and Section 103 of Constitution of Jammu and Kashmir. Similarly, jurisdiction is vested in the Apex Court under Article 32 of the Constitution of India. The learned Single Judge has rightly rejected the application moved by the petitioner for recalling final order of this Court dated 03-09-2008, for, the aforesaid order was passed by this Court after affording full opportunity of hearing to the petitioner. Rather, order dated 03-09-2008 was passed in a petition filed by none other than the petitioner. The order dated 03-09-2008 could not be said to be an order which is nullity and non-est in the eye of law. The petitioner, who claims to have been deprived of an opportunity of being heard by the Special Judge Anti-Corruption, was afforded such opportunity by the learned Single Judge, who dismissed his petition vide its order dated 03-09-2008 and the illegality, if any, committed by the Special Judge, Anti-Corruption while accepting the Ikhtitami at the back of petitioner was cured by the fact that such opportunity was granted by this Court while hearing and deciding OWP No. 702/2003 and was availed of by the petitioner.

10. A perusal of order dated 03-09-2008 impugned in this petition would show that the same was passed by the learned Single Judge of this Court on merits and on being satisfied that there was no material to question the 561-A Cr. P. C No. 139/2017 Page 5 of 7 investigation conducted by the Vigilance Organization. That being the position, the learned Single Judge was correct in dismissing the application of the petitioner for recalling of the aforesaid order as the order dated 03-09-2008 was not an order which could be treated as nullity in law and therefore, subject to recall jurisdiction of this Court.

11. This Court, therefore, does not have jurisdiction to interfere in order dated 21-07-2016 passed in MP No. 01/2015 by a Coordinate Bench of this Court, which otherwise is in consonance with law.

12. In view of the aforesaid discussion and for the reasons given above, this petition is held to be not maintainable in the given facts and circumstances of the case. Order impugned dated 03-09-2008 passed in OWP No. 702/2003 and the order dated 21-07-2016 passed in MP No. 01/2015 impugned in this petition, are not the orders in nullity and void abinitio and, therefore, are not amenable to challenge in a petition under Section 561-A Cr.P.C. The larger question as to whether the order passed by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India read with Section 103 of Jammu and Kashmir or under its inherent jurisdiction vested by virtue of Section 561-A Cr.P.C can be made subject matter of challenge before this Court in a petition under Section 561-A Cr.P.C and if yes, under what circumstance is, however, left open to be dealt with in appropriate case. Suffice it to say that the petitioner has not made out a case for entertaining this petition purportedly filed under Section 561-A Cr.PC. The petition is, accordingly, dismissed.

(Sanjeev Kumar) Judge SRINAGAR:

27/09/2017 'Tarun Gupta' 561-A Cr. P. C No. 139/2017 Page 6 of 7 I pronounce this Judgment under Rule 138 (3) of J&K High Court Rules, 1999.

(M.K.Hanjura) Judge Srinagar:

27th September, 2017.