Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mohi Ud Din Najar And Anr vs State And Ors on 26 July, 2017
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR
Case No: 561-A 233/2012 c/w B.A 50/2016 & OWP 1274/2016 Dt : 26th July. 2017
GHULAM MOHI UD DIN NAJAR VERSUS STATE AND ORS
NOOR UL HASSAN PARRAY VERSUS STATE AND ORS
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes
ii. Whether to be approved for
reporting in Digest/Journal : Yes
FOR THE PETITIONER/s : M/S. M. A.QAYOOM, S.R.HUSSAIN & Z.A.QURESHI
FOR THE RESPONDENT/s: . MR. B.A.DAR, Sr. AAG
(M.K. HANJURA) 01/ Three petitions - one u/s 561-A Cr.PC, the other under the nomenclature of "Other Writ Petition (OWP)", seeking quashing of the order of the sanction for the prosecution of the petitioner/accused and the third one for enlarging the accused on bail, require to be determined and decided by this order.
02/ On the 22nd November 2012, one Ghulam Mohi-ud-din Najar S/O Abdul Aziz Najar R/O Khanabal, Anantnag, filed a petition u/s 561- A, Cr.PC, wherein he sought the indulgence of this Court in quashing the order dated the 25th October, 2012, passed by learned CJM, Anantnag.
03/ In order to understand the nature of controversy in its proper perspective, the facts, germane to the issue, need elaboration and these are as under :
Ghulam Mohi-ud-Din Najar - petitioner and Noor Mohammad Dagga filed a complaint in terms of Section 156(3) Cr. Pc, before the Chief Judicial Magistrate, Anantnag. In the complaint it was stated by the petitioners that on 13.09.2010 some boys, which included one Maroof Ahmad Nath, a college going student, were chased by the troopers. The boys finding no way to run away, were forced to jump into the river Jehlum as a result of which, Maroof Ahmad Nath died. His body was fished out on 18.09.2010 from the river. The locals thereafter carried the dead body in absolutely peaceful procession but they were fired upon K. P. Road. The procession got dispersed but the relatives of the deceased took away the dead body to his ancestral village viz. Nathpora Khanabal for offering his last rites. Two youths Bilal Ahmad Najar and Noor-ul-Amin Dagga were waiting outside Masjid Ahlihadees, Khanabal, to offer Jinaza. They were not part of the procession but as soon as the dead body reached the said Masjid Sharief the troopers fired upon at Noor-ul-Amin Dagga, resulting in his instant and on spot death. Bilal Ahmad, while nodding to the forces personnel not to fire again bowed down to life Noor-ul-Amin Dagga but the forces fired upon him also, without any provocation. The inhabitants despite restraints succeeded to take both victims to Hospital where Noor-ul-Amin was declared as brought dead and Bilal Ahmad was referred to the SHMS Hospital Srinagar. However, despite best efforts of the doctors, he breathed his last on 18.09.2010. In the aforesaid background, it was requested that cognizance of the matter be taken and the respondent No. be directed to register a case and constitute a Special Investigation Team (SIT) and after arresting the culprits, submits the investigation report to the Court within the shortest possible time.
On the receipt of the complaint, the learned CJM Anantnag, in terms of her order dated 26.10.2010 forwarded the same to the respondent No. 1 with the direction to register a case and investigate the matter. He was also directed to constitute a team which shall be headed by an officer not below the rank of Dy. SP for the purpose and to file a detailed report by or before 2nd of November, 2010 before the Court.
In response to the order of the Hon'ble Court dated 26.10.2010, the respondent No. 1 informed the Court in terms of his letter dated 1.11.2010 that a criminal case stands already registered in Police Station Anantnag under FIR No. 355/2010 under sections 148, 149, 336, 427, 307, 188 RPC and 3-4 Public Property (Prevention of Damages) Act, 1985 and the investigation of the case is at its initial stage. He also informed the Court that SIT has been constituted and the progress of the investigation will be submitted to the Court as and when directed.
On the receipt on the letter dated 1.11.2010, the learned CJM Anantnag, in terms of the order dated 15.11.2010 held that the occurrence in respect of which FIR No. 355/2010 has been registered by Police is a different one and the occurrence and happenings leading to the death of the two youths is a distinct and separate incident, as such, the contention of the respondent No. 1 is turned down and he is directed to register a case with respect to the occurrence resulting in the death of the two youths on 18.9.2010.
The State through Additional Public Prosecutor Anantnag, challenged the orders dated 26.10.2010 and 15.11.2010 passed by CJM Anantnag, before the Sessions Judge, who vide his order dated 29.3.2011 allowed the said revision petition and while setting aside the order dated 15.11.2010, directed that the investigation of the case falls within the domain of executive, and, therefore, the Court cannot interfere in the functioning of the investigation agency.
Aggrieved by the order dated 29.3.2011, the petitioner and the father of the respondent No. 3 filed a petition under section 561_A Cr. PC bearing No. 78/2011 before this Court which was allowed on 30.1.2012 and while setting aside the order of learned Sessions Judge, Anantnag, dated 29.3.2011, the Court directed the SHO P/S Anantnag to comply with the order dated 15.11.2010 passed by CJM Anantnag and after registering a case, investigate the same as per law. The CJM Anantnag was also directed to monitor the investigation and pass order from time to time as circumstances of the case may warrant.
On the receipt of the file from the Court, the learned CJM Anantnag in terms of the order dated 3.2.2012 directed the police to produce the investigation report before the Court on the next date of hearing.
No report was, however, submitted by the police before the learned CJM Anantnag, who, in terms of the order dated 21.2.2012 directed the police to submit status report for registration of case before the Court. From 21.2.2012, the case was firstly adjourned to 15.3.2012 and thereafter to 19.4.2012, 2.5.2012, 10.5.2012, 31.5.2012, 18.6.2012, 19.7.2012 24.8.2012, 8.9.2012, 26.9.2012, 6.10.2012 and 25.20.2012 and every time, the Court granted time to the respondents to show compliance of the orders of the Hon'ble Court, which the respondents, however, failed to do.
04/ On 25.10.2012, the trial court passed the following order :
"SPO present. Nemo for non-applicants. SP again laid same communication claiming therein more time in preferring SLP. This stand appears to me shaky one. Be that as it may, earlier SSP Anantnag demonstrated that FIR No. 355/2010 stands already registered, however, failed to file status report regarding investigation. SSP Anantnag is directed to file status report pertaining to the investigation of FIR No. 355/2010 stating therein whether alleged occurrence of murder is being probed or not so that orders in respect of monitoring of investigation and registration of case are passed. Put up on 04.11.2012.
05/ The order dated 25.10.2012 of the trial Court has been challenged before this Court on the following grounds :
a) That in terms of order dated 26.10.2010, the learned CJM Anantnag had directed the respondent No. 1 to register a case and investigate the matter. He was also directed to constitute a team to be headed by an officer not below the rank of Dy. Superintendent of Police for the purpose and to file a detailed report by or before 2.11.2010 before the Court. In response to the order dated 26.10.2011, the respondent No. 1 informed the Court that a criminal case stands already registered in Police Station Anantnag under FIR No. 355/2010 and the investigation of the case is at its initial stage. The learned CJM Anantnag, in terms of the order dated 15.11.2010 held that the occurrence in respect of FIR No. 355/2010 has been registered by the police, is a different one and the happenings leading to the death of two youths is a distinct and separate incident, as such the finding of respondent No. 1 is turned down and he is directed to register a case with respect to the occurrence resulting in the death of two youths on 18.9.2010. The order passed by the CJM Anantnag on the dates 26.10.2010 and 15.11.2010 were challenged by the respondents before the learned Sessions Judge, Anantnag, who by virtue of order dated 29.3.011 set aside the orders passed by learned CJM Anantnag. The order passed by the Sessions Judge, Anantnag was challenged by the petitioners before the Hon'ble Court through petitioner under section 561-A Cr. PC, bearing No. 78/2011 and the Hon'ble Court vide order dated 3.1.2012 allowed the petition and while setting aside the order dated 29.3.2011 passed by Sessions Judge, Anantnag, it upheld the orders passed by the learned CJM Anantnag and directed the registration of the case and investigation thereof to be monitored by the CJM Anantnag. In that view of the matter, the respondents and the learned CJM Anantnag had to follow the order dated 30.1.2012 in letter and spirit. The order dated 25.10.2012 has, however, been passed by the CJM Anantnag in utter disregard of law. Since the Hon'ble Court had not directed the learned CJM Anantnag to monitor the investigation in FIR No. 355/2010, therefore, he had no jurisdiction to ask the respondent No. 1 to file status report pertaining to the investigation of FIR No. 355/2010. On the other hand, he had to follow the orders of the Hon'ble Court dated 30.1.2012 by directing the respondents to register a case and investigate the same in accordance with law. He having not done so, the order dated 25.10.2012 is liable to be set aside.
b) That the learned CJM Anantnag has not taken any steps to implement the order of the Hon'ble Court dated 30.01.2012 in letter and spirit. He has off and on granted time to the respondents to register a case and submit a status report thereof before the Court. The respondents having not obeyed the directions, he was, therefore, obliged to initiate contempt proceedings against them and simultaneously get the order dated 30.1.2012 implemented by any coercive method, which he would deem fit and proper under the facts and circumstances of the case. He having done none and instead he having passed the impugned order dated 25.10.2012 contrary to the directions of the Hon'ble Court, therefore, the order dated 25.10.2010 is liable to be set aside.
c) That not only in terms of section 561_A, the Hon'ble Court has the power to make such orders as may be necessary to give effect to any order passed under Code of Criminal Procedure or to prevent abuse of any order or otherwise to secure the ends of justice, but in terms of section 561_B Cr. PC, the Hon'ble Court has to exercise its powers of superintendence over the Court of Judicial Magistrate subordinate to it so as to ensure that there is expeditious ad proper disposal of the cases by such Magistrate(s). In the instant case, the learned CJM Anantnag having not obeyed the orders of the Hon'ble Court dated 30.1.2012 and instead he having passed the order dated 25.10.2012 in utter disregard of law, it will, therefore, be expedient in the interests of justice to withdraw the file from the Court of CJM Anantnag so that appropriate orders are passed in the matter with regard to the registration of the case and also monitoring of the investigation thereof by the Hon'ble Court. It is also very relevant to mention here that Bilal Ahmad Najar and Noor-ul-Amin Dagga were murdered by the police on 18.9.2010 and even though two years have passed since then, the respondents have neither registered a case relating to their death nor have they conducted any kind of investigation in the matter so far. The non-registration of the FIR being aimed at to see that whatever evidence could be collected by the Investigating Officer should disappear, therefore, it is imperative on the Hon'ble Court to see that FIR is registered with regard to the death of Bilal Ahmad Najar and Noor-ul-Amin at the earliest and investigation of the case is conducted as expeditiously as possible, which should be monitored by the Hon'ble Court.
In the premises, it has been prayed that this petition be allowed and while setting aside the order dated 25.10.2012 passed by CJM Anantnag, the file be withdrawn from the said Court and the police concerned be directed to register an FIR with regard to the death of Noor-ul-Amin Dagga and Bilal Ahmad Najar as directed by the Hon'ble Court in terms of its order dated 30.1.2012 and the investigation of the case be monitored by the Hon'ble Court itself."
06/ The petition was listed before this Court on 23rd November 2012 and the relevant excerpts of the said order are as under :
"Mr. Qayoom submits that it appears that the CJM Anantnag is taking the investigation of the present case altogether on a different track without their being registration of the formal FIR against the accused as directed by this Court while disposing of 561_A No. 78/2011. He has brought the attention of the Court to the order dated 25th October 2012, wherein it is said that SSP Anantnag demonstrated that FIR No. 355/2010 stands already registered and that he is directed to file status report pertaining to FIR N0. 355/2010 stating therein whether the alleged occurrence of murder is being probed or not so that the orders in respect of monitoring of investigation and registration of the case are passed. The order indicates that the matter was deferred for 4.11.2012. Mr. Qayoom fairly states that till filing of the instant petition, he was not informed by the petitioner as to what order has been passed by learned CJM on the deferred dated.
Be that as it may, in the manner learned CJM Anantnag has dealt with the proceedings with the present case despite their being a specific direction passed by this Court in 561_A Cr. PC No. 78/2011 directing SHO P/s Anantnag to comply with the earlier Court order dated 15.2.2011 for registration of the case, it becomes imperative for the Court to withdraw the proceedings from the Court of CJM Anantnag for monitoring the same by this Court itself so as to avoid miscarriage of justice."
07/ What gets revealed from the perusal of the order supra is that this Court withdrew the proceedings from the Court of learned CJM, Anantnag, for monitoring the same by itself so as to avoid miscarriage of justice.
08/ By order dated 21st December, 2012, which is also relevant in the context of the decision of the petition, the Court directed as follows :
" 2/ Mr. Qayoom states that up till 23.11.2012, he was not aware as to whether fresh FIR No. 361/2012 under section 302 RPC stands registered in Police Station, Anantnag on 19.11.2012 with regard to the present occurrence and he has come to know of that fact lonely after copy of the status report has been provided to him, wherein it is stated that after the permission was denied by the Government for filing SLP before Hon'ble Supreme Court against the order dated 30.01.2012 passed by this Court, the aforesaid FIR No. 361/2012 stands registered and that the investigation of the same handed over to Dy. SP., Headquarter, Anantnag.
3/ Mr. Qayoom states that in the status-report now filed by SHO, it is indicated that during the course of the investigation the correspondence has been made with the District Magistrate to ascertain as to whether the curfew was imposed within the town area of Anantnag on the date of occurrence of firing incident i.e, 18.09.2010 and is so the District Magistrate has been requested to provide the order of imposing curfew on the said date. According to Mr. Qayoom, this all could be ascertained without waste of any time as it is all entered into the official record.
4/ Mr. Qayoom further submits that even otherwise the other part of the investigation carried out as reflected in Para 8 of the status report is also neither here nor there, being evasive as it has not been made clear as to any of the form vide publicity has been given inviting the public to get their statement(s) recorded, which includes the eye witnesses of the occurrence.
5/ Mr. Qayoom submits that after the registration of the case on 19.11.2012, virtually there is no progress into the investigation even after lapse of one month and few odd days. He submits that the occurrence relates to September, 2010 when two persons were allegedly killed and the manner in which the investigation is being carried out in the present case gives an impression that the Prosecuting Agency for certain obvious reasons wants to delay the proceedings so that the truth does not come to surface. 6/ However, for satisfaction of the Court, Mr. Chashoo has been asked to check the investigation carried out in the present case after registration of the case on 19.11.2012. He states that by now statements of Avtar Singh S/o Khajoor Singh R/o Tral, Nazir Ahmad Mir S/o Lassi Mir R/o Mir Bazar, Ravi Singh S/o Sheetal Singh R/o Palapora, Mushtaq Ahmad Khan S/o Abdul Ahad Khan R/o Aa-chida and Mehraj-ud-Din Lone S/o Gh. Rasool Lone R/o Ashajipora have been recorded under section 164-A Cr. P.C. He states that after 07.12.2012, the Prosecuting Agency has not shown any progress in carrying out the investigation of the present case. 7/ On a specific query put to Mr. Chashoo as to whether the Investigation Officer of the present case (Dy. SP) has visited the house of the parents of the deceased for recording their statements for the reasons that the deceased were allegedly lifted from their house(s), he after perusing the case diaries prepared till date states that there is no whisper about it.
8/ It appears to the Court that Dy.SP. Headquarter, Anantnag is once again taking the matter in a very casual manner. In all fairness, before recording any statement of the witness, as referred to hereinabove, he should have first of all approached the complainant party to know the complete facts of the case. This would have the initial start of the investigation.
9/ The status report is evasive in nature. Even otherwise, it accompanied by an affidavit of SHO Police Station, Anantnag, whereas it should have been accompanied by an affidavit of Dy. SP, Headquarter, Anantnag, the Investigation Officer of the present case.
10/ Viewed thus, it is made clear that on each and every date when the instant petition is taken up for consideration, Dy.SP, Headquarter, Anantnag shall cause his appearance with the complete C/D file, apprising the Court as to the various steps taken in the present case. Not only that, the investigation being carried out by Dy. SP, Headquarter, Anantnag, shall be monitored by SSP, Anantnag, twice in a month and each page of the investigation (Zimni) prepared by the Investigation Officer shall be signed by him (SSP, Anantnag). All the case diaries shall be produced in the first week of every month before the Illaqa Magistrate in whose jurisdiction the FIR stands registered for his perusal and initials. 11/ It is also made clear that the notice will be published in the newspaper having wide circulation in the Kashmir Valley, so that everyone acquainted with the facts of the present case can come forward to make their respective statement(s).
12/ The further proceedings of the present case are deferred for four weeks, making it clear that on the next date of hearing, Dy. SP, shall file a fresh status report vis- à-vis the investigation carried out in this case, which shall also be accompanied by his own affidavit, lest it gives an impression that he is intentionally avoiding to do so. 13/ Since the Court is closed for ensuing winter vacation, the instant petition shall be taken up in the 2nd week of February, 2013.
14/ Copy of the order shall be provided to learned counsel for both the sides under the Seal and Signatures of the Bench Secretary."
09/ The order cited above is a sequel to the fact that a fresh F.I.R No. 361/2012 , u/s. 302 RPC, was registered on 19th November, 2012 at Police Station, Anantnag, with regard to the occurrence in hand. 10/ A series of orders have been passed by this Court thereafter for monitoring the proper investigation of the case and by order dated 17th November, 2013, this Court directed the Inspector General of Police (IGP), Kashmir, to constitute a Special Investigation Team, within a week's time, to be headed by an officer not below the rank of Superintendent of Police (SP), who shall carry forward the investigation and take it to its logical conclusion with further direction that he, (SP), will submit his report within four weeks thereafter. The investigation of the case, however, moved at a snails pace and by another order dated 04th August, 2015, this Court directed that the alleged occurrence is of the year 2010. Almost 05 years have elapsed and investigation is yet to be completed. The Investigating Agency is not only under statutory obligation to conclude the investigation at the earliest but is under constitutional obligation, in terms of article 21 of the Constitution of India, to conclude the investigation at the earliest.
11/ On 15th December 2015, learned counsel for the respondents stated before the Court that the investigation stands completed and the Court directed that on the basis of this statement of the learned counsel, there should be no impediment in presenting the outcome of the investigation before the competent Court. 12/ On 09th June, 2016, the learned Dy. AG, representing the respondent -State, stated before the Court that since the accused is a Government servant, therefore, Government has to accord sanction for his prosecution. Accordingly, the Commissioner Secretary to Govt., Home Department, was impleaded as a party respondent and directed to file the latest Status Report in the matter within a period of two weeks.
13/ By order dated 19th November 2016, this Court directed that the matter be listed for consideration in the week following next along with OWP 1274/2016 and B.A. No. 50/2016. The said petition- (OWP 1274/2016 ) was instituted in this Court on 25th October, 2016, in which, by order dated 27th of October, 2016 of this Court, it has been directed that in case the respondents contemplate to file the Charge Sheet against the petitioner, the same shall be deferred. The petitioner in the said petition sought the quashing of the order of sanction issued u/s 197 Cr.PC for his prosecution on the following grounds :
"a) That the Notification impugned is against facts, truth and record and is not good and maintainable in the eyes of law as it has resulted in FAILURE OF JUSTICE. It is apt to mention here that in the notification impugned a reference to the occurrence at bus stand KP road and registration of FIR 355/2010 has been made which itself nullifies the case FIR No. 361/2012 based on statements of injured eyewitness, statements of CRPF personnel, statement of duty Magistrate, statement of Kote (armory) Incharge etc, presence of deceased at bus stand as accused, absence of scientific and material evidence etc. But the Respondent No. 1 hasn't even whispered as to how he reached the conclusion of the satisfaction for launching prosecution in case FIR No. 361/2012 when there were strong indicators against the same.
b)That the absence of any kind of mention/reference of the 3 rd FIR No. 89/2013 against the kin of the deceased Bilal Najar makes the whole process doubtful and shady. It was duty of the Respondent No. 2 to place on record the case diaries of FIR 361/2012 & FIR 89/2013 along with the recommendations for grant of sanction before the sanctioning authority (Respondent No. 1).
c) That the impugned Notification is hit by Circular No. 23-GAD (Vig) of 2015 dated 10.07.2015 issued by the General Administration Department read with the judgment of the Hon'ble Apex Court of India in Criminal Appeal No. 1838/2013 titled "Central Bureau of Investigation V/s Ashok Kumar Aggarwal" regarding the guidelines for the grant of sanction for prosecution namely:-
i. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
ii. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
iii. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
iv. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
v. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.
Copy of the aforesaid Circular along with judgment of the Hon'ble Apex Court is enclosed herewith and marked as Annexure-P & Q respectively.
d) That the material which tilts the balance in favour of the petitioner i.e. case diaries, statements of injured eye witnesses in case FIR No. 355/2010, the record of FIR No. 89/2013, the deployment order of Nafri, the record of District Armory besides other relevant record which has a direct bearing on the case in hand has not been submitted to the sanctioning authority before passing of the Notification impugned. It is the responsibility of the prosecution to make available all relevant record and facts to the sanctioning authority without prejudice and mala fide. The full record has not been placed before the sanctioning authority thereby raising the questions about the validity, legality and sanctity of the sanction order which implies FAILURE OF JUSTICE on part of Respondent No. 1.
e) That the Notification impugned neither makes it clear whether the sanctioning authority (Respondent No. 1) was aware of the relevant facts/material, nor were the relevant facts/material placed before the same for processing of the sanction. Also it is amply clear that the sanctioning authority (Respondent No. 1) has failed in application of mind for granting of sanction. Needless to mention here that the power to grant sanction is to be exercised strictly in accordance with law and the protection available to the accused against whom the sanction is sought.
f) That the notification impugned clearly indicates the delegation of authority to an unauthorized authority that has not legal bearing in the whole process. This points to a grave laxity and callous approach on part of the sanctioning authority (Respondent No. 1), thereby invalidating the maintainability of the sanction order.
g) That the sanctioning authority is duty bound legally to do a complete and a conscious scrutiny of the whole record, apply its mind and take into consideration all the relevant facts/material before granting sanction but in the instant case the needful has not been done, as the sanctioning authority firstly was neither provided with all the relevant material by the prosecution nor did the sanctioning authority bother to go through the record when the facts were brought to its notice in terms of the representation by the petitioner.
h) That the impugned notification has been issued in utter haste without application of mind and appreciation of facts/material placed before the respondent No. 1 and absence of a detailed report being submitted by respondent No. 2, despite there being direction from respondent No. 1 in this regard.
i) That the FIR No. 361/2012 is a counter blast to FIR No. 355/2010 in which the injured eye witnesses have implicated 18 persons including the deceased persons for vandalizing the government/public property and attacking the CRPF in defiance of curfew. Moreover, the tampering of medical record demonstrates the manipulations and exaggerations for meeting the mischievous design by the complainant and other concerned persons. The petitioner further submits that the very registration of FIR No. 361/2012 and the investigation in the said FIR by a separate team is illegal and beyond the scope of criminal jurisprudence.
The petitioner reserves the liberty to urge more grounds at the time of hearing."
14/ The State has resisted and controverted the petition and the petitioner - Dy.SP, on the grounds that the petitioner was performing his duty from the areas of KP Chowk, Al-Noor Masjid upto Bus Stand including Nathpora Khanabal as per deployment order dated 18.09.2010 and the incident of case FIR No. 355/2010 had taken place at Delhi Darbar. As per the statement of the witnesses of case FIR No. 361/2012 the incident had taken place at Alhi-hadith Masjid, Khanabal, and is a separate incident. The case FIR No. 89/2013 has been lodged while collecting the medical record from the District Hospital Anantnag and same is independent on the facts of its own as it related to the independent occurrence. That case FIR No. 361/2012 in which sanction has been accorded by the sanctioned authority is based on its own facts and grounds and evidence collected during the course of investigation and entire relevant records of the case i.e. FIR statement of the eye-witnesses recorded U/s 161 & 164-A Cr. PC. MLC memos with opinion of the doctors, site plan, deployment order, curfew order, Magistrates duty order, relaxation order and record from DPL Kot, Anantnag of the relevant period had been submitted before the sanctioning authority through PHQ and sanction has been granted in accordance with law. The facts/details of case FIR No. 355/2010 and 89/2013 had been mentioned in the final Zimni of case diary of case F.I.R No. 361/2012. It is worthwhile to mention here, the incident of case F.I.R No. 355/2010 had taken place at Delhi Darbar. As per the statement of the eye-witnesses of case FIR No. 361/2012, the death of the deceased has taken place at Alhi-hadith Masjid Khanabal and it is a separate incident. The case FIR No. 89/2013 has been lodged while collecting the medical record from the District Hospital, Anantnag. It is related to the independent occurrence. That case FIR No. 361/2012 is not counter blast of case FIR No. 355/2010. Case FIR No. 361/2012 was lodged in compliance to the Hon'ble High Court's order dated 30.01.2012 passed in the petition. During the investigation of the case, it surfaced that separate occurrence has taken place at Ahli-Hadith Masjid Khanabal, on the basis of the statements of 30 PW's including 06 Pw's, whose statement has been recorded U/S 164-A Cr. PC. The name of the petitioner surfaced as an alleged accused person and accordingly after concluding the investigation by the SIT the case file was sent to the Home department through PHQ for grant of sanction as required under section 197 Cr. PC.
15/ Heard and considered. 16/ The investigation of the case, nominated by the Court,
revealed that the accused (the petitioner in OWP 1274/2016) is involved in the commission of an offence u/s 304 RPC and sanction for his prosecution has also been accorded by the competent authority u/s 197 Cr.PC. When the petitioner attained the knowledge that his prosecution is sanctioned and the State is likely to lay the report in terms of section 173 Cr.PC against him before the competent Court of jurisdiction, he, with a quick maneuver, filed the OWP 1274/2016, in which, by an interim direction, the order of the sanction of his prosecution, was stayed. This worked as a ploy to scuttle the process of filing the Charge Sheet against him in the Court. 17/ From the above, what is brought to the fruition is that the State was hampered to place the result before the investigation of the case before the competent Court only and only because of the operation of the order of the stay against the sanction of the prosecution of the accused, which, according to the learned counsel for the petitioner, was given with eyes shut and ears closed and, as per him, this is an infraction of law. True it is that a valid sanction gives the Court the teeth and jurisdiction to proceed further in a case and a defective order of sanction goes in favour of the accused. 18/ The State and the complainant have made a two pronged attack against the argument of the learned counsel for the petitioner in the OWP and these are, firstly, that the sanctioning authority has properly applied its mind to the facts and circumstances of the case, whereafter a well reasoned order of sanction, based on the entire material of the case that was placed before it, has been passed. Secondly, it has been contended that it is within the domain, power and authority of the trial Court to find out whether the order, which has culminated into the sanction of the prosecution of the accused, is, or is not, a valid one.
19/ To canvass their respective contentions, learned counsel have placed reliance on a catena of judicial pronouncements. Curiously, all these authorities of law have been relied upon, scanned and overseen by the apex Court of the country in case titled C. B. I. versus Ashok Kumar Aggarwal, reported in AIR 2014 SC 827, the relevant excerpts of which are reproduced below verbatim et literatim :
"6. In State of M. P. v. Dr. Krishna Chandra Saksena (1996) 11 SCC 439, while dealing with the issue this Court held:
"........The sanctioning authority was satisfied after complete and conscious scrutiny of the records produced in respect of the allegation against the accused. Now the question whether all the relevant evidence which would have tilted the balance in favour of the accused if it was considered by the sanctioning authority before granting sanction and which was actually left out of consideration could be examined only at the stage of trial when the sanctioning authority comes forward as a prosecution witness to support the sanction order if challenged during the trial. As that stage was not reached the prosecution could not have been quashed at the very inception on the supposition that all relevant documents were not considered by the sanctioning authority while granting the impugned sanction."
(Emphasis added) "7. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material acts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge- sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non-application of mind.
(Vide: Gokulchand Dwarkadas Morarka v. King, AIR 1949 PC 82; Jaswant Singh v. State of Punjab, AIR 1958 SC 124; Mohd. Iqbal Ahmed v. State of A. P., AIR 1979 SC 677; State through Anti-Corruption Bureau, Govt. of Maharashtra v. Krishanchand Khushalchand Jagtiani, AIR 1996 SC 1910: (1996 AIR SCW 2243); State of Punjab v. Mohd. Iqbal Bhatti, (2009) 17 SCC 92: (2010 AIR SCW 1186); Satyavir Singh Rathi, ACP v. State, AIR 2011 SC 1748; (2011 AIR SCW 2874); and State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119: (AIR 2013 SC (Cri) 1466: 2013 AIR SCW 3174)."
"8. In view of the above, the legal propositions can be summarized as under:
(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
46. The most relevant issue involved herein is as at what stage the validity of sanction order can be raised. The issue is no more res integra. In Dinesh Kumar v. Chairman, Airport Authority of India &Anr. AIR 2012 SC 858: (2011 AIR SCW 6834), this Court dealt with an issue and placing reliance upon the judgment in Parkash Singh Badal & Anr. v. State of Punjab & Ors., AIR 2007 SC 1274: (2007 AIR SCW 1415), came to the conclusion as under:
"13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the trial court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal..."
47. Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pretrial stage."
20/ Applying the ratio of the law laid down above to the facts and circumstances of the instant case, although the order of sanction appears to have been passed after complete and conscious scrutiny of the records, yet the question of its validity or otherwise cannot be raised at this stage. The validity of the sanction cannot be subjected to legal inquisition when even the Charge Sheet has not been laid against the accused in terms of section 173 Cr.PC. It is the prosecution that has to establish and satisfy the Court by leading evidence that the entire material was placed before the sanctioning authority and the sanctioning authority applied its mind and perused the entire material before the accord of sanction for the prosecution of the accused. The scrutiny of the order of sanction cannot be made at the stage of inquiry or at the pre-trial stage as has been held in the judgement supra.
21/ The cumulative effect of all that has been said and done above is that the instant case is a remorseful story of a very very unconscionably delayed and dilatory investigation. The occurrence has taken place before a period of seven years. Since the investigation of the case is complete now, therefore, the State is directed to lay the report in terms of section 173 Cr.PC before the competent Court with utmost dispatch. The petition u/s 561-A Cr.PC, is decided accordingly.
22/ As regards the OWP, filed by the petitioner/accused, it is directed that the order of the sanction of the prosecution of the accused can be questioned by him before the trial Court at the appropriate stage. In case the petitioner/accused raises this issue before the trial Court, it shall decide the same on its merits and shall not get swayed by any observation made by this Court in this order.
23/ As regards the application for the grant of bail in favour of the accused in anticipation of his arrest in F.I.R No. 361/2012, registered at police station Anantnag, for offences u/s 304 II RPC, this Court, by order dated 30th of June, 2016, directed that till next date of hearing, the accused, in the event of his arrest, shall be released on bail on furnishing a Surety Bond in an amount of Rs.2000/- and a Personal Bond of the like amount.
24/ The question that requires to be probed into under the circumstances is whether this order will exempt the accused/petitioner from surrendering before the Court in the event a Charge Sheet is filed against him. The dictum of law as enunciated/contemplated in the case of HDFC Bank Ltd. versus J.J.Mannan alias J.M.John Paul and another, reported in (2010)1 SCC 679, provides the answer to the question. Paragraphs 19 & 20 of the said judgement, which have a bearing on the matter in issue, provide as under :
"19. The object of section 438 Cr.PC has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of section 438 Cr.PC cannot also be invoked to exempt the accused from surrendering to the Court after the investigation is complete and if charge sheet is filed against him. Such an interpretation would amount to violence to the provisions of section 438 Cr.PC, since even though a charge sheet may be filed against an accused and charge is framed against him, he may still not appear before the Court at all even during the trial.
20/ Section 438 Cr.PC contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge sheet, the accused has to surrender to the custody of the Court and pray for regular bail. On the strength of an order granting anticipatory bail, an accused against whom charge has been framed, cannot avoid appearing before the trial Court."
25/ Section 438 Cr.PC corresponds to section 497-A of the Cr.PC as is applicable to the State of J&K. On the analogy of the law laid down above, the accused has to surrender to the custody of the competent Court and pray for regular bail. The accused cannot avoid appearing before the trial Court on the assumption that an order for the grant of anticipatory bail has been passed in his favour. Therefore, the accused shall surrender before the trial Court at the time the Charge Sheet is laid against him in terms of section 173 Cr.PC and shall pray for regular bail. The trial Court shall dispose of the same on merits and in accordance with the law before proceeding further with the trial. The bail application shall stand disposed of accordingly.
TARIQ Mota SRINAGAR.
26 -07-2017 (M.K.HANJURA) JUDGE