Decided on August 06,1993

STATE Appellant
Gh Mohi -Ud -Din Respondents

Referred Judgements :-



- (1.)THROUGH the medium of this petition. State of Jammu and Kashmir has called in question an order passed by the special Judge, Anti Corruption, Srinagar in an anticipatory bail application filed by the respondent. The impugned order was passed on 14th of July, 1993, and the subordinate Judge by virtue of the said order directed the Police concerned that the respondent should not be arrested from 12 0 clock to 2 P.M. and should in no case be arrested subject to the condition that he furnishes bail bonds and surety to the tune of Rs. 20,000/ -
(2.)THE facts of the case in brief are that respondent who was working as District Development Commissioner at Anantnag during the years 1992 -93, was implicated in a criminal case in terms of Section. 5(2) of prevention of Corruption Act, 2006 read with sections 467 and 120 (b) of R.P.C. Launching of the prosecution against the respondent and so many others emanated out of a multi crore Scam, which broke open in Anantnag district. The allegation was that Rs. 1.80 crores were allocated for legitimate development works in eight blocks of the District in financial year of 1992 -93. An additional amount of more than Rs. eight crores was fraudulently and dishonestly drawn from Govt. treasury against fabricated and fraudulent bills by the accused. It was also alleged that amounts were withdrawn against the "works which did not exist and were never executed. Moreso, bills have been drawn in the names of dead persons. Double drawals have been made from the Government Treasury, in the month of March/April 1993. The respondent who is the Chief Executive and under single line administration the head of the district was implicated in the matter and the case stood registered under FIR No. 10/93 before the Vigilance Organisation.
(3.)APPREHENDING his arrest, the respondent filed an application for grant of anticipatory bail before the subordinate court. In this bail motion the respondent has tried to project his defence by showing that he had taken all possible steps to stop drawal of the amount in various branches of the Jammu and Kashmir Bank. He has asserted that he is class one officer and a respectable citizen and in the event of arrest he would be put to "Tenible embracement, disrespect and dis -regard" in public estimation. It his also been mentioned in the application that the state has given wide publicity to the matter and as such, the respondent was scared beyond measure. My attention was attracted by following sentences which find; place in the respondents application before the subordinate court: This is a fact while the Honble court has to take note of, the arrest of the petitioner is no way essential under law. It is only to satisfy the ego of the respondents. The only purpose of arresting the accused is to secure his presence for the purpose of trial and if this is possible otherwise the arrest become immaterial." I am prompted to reproduce this sentence only to show as to what are the contours of perception of a class one officer of the state and the senior advocates representing him viz -a -viz anticipatory bail, No particulars of malafides are detailed out in the bail application. The detailed objections to this bail application were filed by the state, wherein re -iterating the above mentioned allegations it was vehemently contended that the respondent was in collusion with other accused in hatching a conspiracy in forging bills, and making drawals. The stats had also mentioned that the investigation of the case was at the thresh hold and much of the relevant record which could throw light upon the case was still in the custody of respondent. The investigation could be completed only when the respondent would be arrested because otherwise tempering and destruction of the record would follow. Besides, this the state vide para 12 to 16 of their objections have resisted the bail motion, while floating the following ideas which provide food for my judicial thought; I. That corruption has eaten into the vitals of the society and in case of granting anticipatory bail, the court would be issuing licences for corruption. II. That the respondent accused was a man of status and carried a lot of influence. He had all possible means at his disposal to win over the witnesses and temper with the evidence. He has of course absconded and is not available for investigation. III. That the seriousness of the offences and magnitude of the money involved makes the case one of public importance. This according to the state was manifested through the amount of public pressure built against all the persons involved in the scandal. IV. That the respondent/accused had been at large and had as such made his bonafides suspicious. Thus the arrest of the accused, according to the prosecution was essential for fair investigation. V. That the accused being charged of offences punishable with life imprisonment could not be granted bail.
The trial court handed down the impugned order on 14th of July, 1991. Before I go to the legality of the order, I want to place on record that the subordinate court prior to the date of order had posted the file for 9.7.1993. on that date the subordinate judge passed a direction for appearance of the respondent/accused before him in person. The case was ordered to be listed on 12.7.1993. The file does not show as to why the case could not come up before the court on the scheduled date. This also is not understandable as to how did the file come up on 14th of July, 1993. However, it is very clear from the record that on 9.7.1993, no arguments were heard. This becomes necessary for purpose of showing that the subordinate judge has passed the order instantaneously which may go a long way in making up of my mind in deciding whether or not the subordinate court has applied its mind while passing the impugned order.

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