BHOMESH SHARMA Vs. STATE OF J AND K
LAWS(J&K)-2006-4-2
HIGH COURT OF JAMMU AND KASHMIR
Decided on April 17,2006

Bhomesh Sharma Appellant
VERSUS
STATE OF J AND K Respondents

JUDGEMENT

Y.P.NARGOTRA, J. - (1.) THE criminal justice system aims to ensure social harmony through law and its enforcement. Its object is to control crime. Three institutions, namely, Police, Judiciary and Prisons, are the chief components of the system. The role of police, which investigates the offences, being foundational is most crucial for achieving the goal. The success of the system principally depends upon the quality of the investigation conducted by the police. The quality investigation contemplates reaching out to the real perpetrator(s) of the crime and gathering such trustworthy, dependable and relevant evidence, on the basis of which it can be established in a competent Court of Law beyond any reasonable shadow of doubt that such criminal(s) alone has/have committed the crime. This can be achieved by honest, objective, impartial and fair investigation. When the investigating agency fails either to reach out to the actual perpetrator of the crime or to gather best evidence, then justice becomes the casualty. And in a case where Investigating Officer collects the best evidence in a criminal investigation and then for any reason whatsoever allows the same to be lost or destroyed, then criminal justice system itself goes into disrepute. Unfortunately, this thing has happened in respect of investigation being conducted by the Vigilance Organization, a prime investigating agency of the State, into FIR No. 20/2005.
(2.) FIR No. 20/2005 was registered by Police Station Vigilance Organization on 6.12.2005 against accused Bhomesh Sharma (Petitioner herein) son of Sh. Brij Mohan Sharma, resident of Pacci Dhaki, Jammu, at present Sector No. 5 Trikuta Nagar (Extension), Jammu, Regional Transport Officer, Kathua, headquarter at Lakhanpur, on the allegation that he by indulging in corrupt practices and benami transactions has amassed huge wealth, far beyond his known sources of income, and that secret inquiries conducted revealed that the accused has raised the assets mentioned in the FIR. After registration of FIR, the investigation was commenced. The Investigating Officer on 6.12.2005 obtained search warrants from the Special Judge Anti Corruption, Jammu, one of those being for raiding the house of Bhomesh Sharma, the accused, at Sector No. 5, Trikuta Nagar (Extension), Jammu for searching for allied records/related documents essential to the investigation. It appears that the Investigating Officer when found that at the said house Sh. Brij Mohan Sharma, father of accused and Shiv Kumar Sharma and Rajesh Kumar Sharma, brothers of accused along with the accused were living, he obtained an order dated 7.12.2005 from Sr. Superintendent of Police, Vigilance Organization for authorizing him in terms of Section 165(3) of Criminal Procedure Code to search that house for tracing out the documents pertaining to disproportionate assets raised by accused Bhomesh Sharma. Accordingly, the Investigating Officer conducted raid on the said house and searched the same. During search the items found in the house were inventorized, which included about 78 documents and 35 rubber stamps. Out of the 35 rubber stamps, five stamps were of the following description: i. Sub Registrar, Katra ii. Copy Issuing Stamp in Urdu iii. Block Development Officer, Reasi iv. Regional Transport Officer, Jammu v. Signature stamp. A seizure memo was prepared for the same on 7.12.2005. The seized articles and documents thus came into the custody of Investigating Officer, whereas the other articles recovered including jewellery were handed back to the father of accused on his supurdanama.
(3.) ON 12.2.2006 the Sr. Superintendent of Police, Vigilance Organization, Jammu filed an application before the learned Special Judge Anti Corruption, Jammu, stating therein as follows: I may bring it to the notice of Hon'ble Court that I was away from my office with effect from February 05, 2006 to February 09, 2006 to undergo a training course held at CBI Academy Ghaziabad (UP). On February 08, 2006, I learnt from Shri Amanat Ali Shah, Dy. SP (PRK) Vigilance Organization, Jammu that Insp. Nissar Hussain Shah No. 49/SVO approached him at his residence on 8th February 2006 in the evening and disclosed that some important record and rubber stamps seized during the house search of the accused Bhumesh Sharma and others on 07/08 -12 -2005 in case FIR No. 20/2005 Under Section 5(1) (e) read with Section 5(2) P. C. Act Svt. 2006 registered with Police Station Vigilance Organization, Jammu were missing. On my arrival at Jammu, I called Insp. Nissar Hussain Shah No. 49/SVO (Investigating Officer) to my office on February 10, 2006 and enquired about the details of missing record and rubber stamps. The I.O. concerned disclosed that during the scrutiny of record he found the following record and rubber stamps missing: (I.) Seizure -memo marked as 'A' (1) Item No. 7 (A passbook Account No. 10582387998 SBI Hari Market, Jammu 0657 in the name of Rajesh Sharma, Chairman Sarswati College of Education); (2) Item No. 25 (Proposed Drawing of Hotel Palace View, Katra passed by Block Development Officer Reasi). Out of three, one drawing missing; (3) Item No. 29 (Lease Deed of Bhumesh Sharma and Rajesh Sharma dated 20.09.2004 in favour of Durga Educational Charitable Trust through Shri B. M. Sharma) : 13 leaves missing; (4) Item No. 47 (Photocopies of Trust Deed dated 02.11.2001 between Mst. Manju Manhas W/O Harsh Dev Singh R/O House No. 27/B Gandhi Nagar, Jammu, Rajni Bala W/O Hari Singh R/O Paloura and Smt. Anita Rani W/O Jagdish Singh Settlers and Trustees Himalayan Educational Trust situated at Paloura, Jammu alongwith a leaf of Letter Pad J&K; National Panthers Party bearing writing with Ball Pen: 12 leaves; (5) Item No. 58 (Copies of Jamabandi, Aks -Tatima and Khasra Girdawari) only copies of Khasra Girdawari missing; (6) Item No. 76 (Photocopy of letter No. Nil dated Nil bearing signature of Commissioner to Government, Information and Transport Department regarding granting of permission to sub lease 6 Kanals and 17 Marias of land situated at Village Kundrorian Tehsil Reasi addressed to Bhumesh Sharma, Assistant Regional Transport Officer, Udhampur. (II) Rubber Stamps (1) Sub Registrar Katra; (2) Copy Issuing Stamp in Urdu; (3) Block Development Officer, Reasi; (4) Regional Transport Officer, Jammu; (5) Signature Stamp. The above mentioned rubber stamps have been replaced by the following stamps: (1) For Saraswati College of Education (Rajesh Sharma), Chairman (2) For Durga College of Education, Chairman (3) For Durga Educational Charitable Trust, Trustee (4) M/S Hotel Palace View, Katra (P. Ltd. Katra J&K;) (5) Indian Institute of Driving and Maintenance, Prop. I may bring it to the kind notice of Hon'ble Court that case FIR No. 20/2005 Under Section 5(1) e read with Section 5(2) P. C. Act Svt. 2006 was registered with P/S Vigilance Organization, Jammu on December 06, 2005. The searches including that of the house of accused Bhumesh Sharma and others were conducted on December 07, 2005. The search of house started on December 07, 2005 at about 0830 hours by the Vigilance team headed by Shri Amanat Ali Shah, Dy. SP as per the prescribed procedure in Cr.P.C. which continued uptill 0600 hours next day i.e. December 08, 2005. The search proceedings and seizure memos were produced in the Hon'ble Court of Special Judge Anti Corruption, Jammu which were examined and authenticated by the Hon'ble Special Judge on December 09 & 10, 2005. The record/material seized from the house of accused Bhumesh Sharma remained with Shri Amanat Ali Shah, Dy. SP till December 14, 2005. On December 15, 2005 the seized record/rubber stamps etc. were handed over to Insp. Nissar Hussain Shah No. 49/SVO through Constable Uksha Anand No. 75/SVO. From December 15, 2005 to February 08, 2006 the record remained in the custody of Investigating Officer concerned. As per the directions of Central Vigilance Office, it was obligatory on the part of Investigating Officer concerned that he should have deposited the seized record/rubber stamps etc. with the Incharge Malkhana Vigilance Organization, Jammu, but he failed to do so. On being asked to explain his failure to do so, he put forth the plea that he could not deposit the seized material with the Malkhana, as it was yet to be scrutinized. The retention of seized articles by the Investigating Officer for such a long time (53 days) is not justified and it is very disheartening to hear that he could not scrutinize the seized record in a period of more than seven weeks. It appears that the accused person in above cited case has been able to penetrate deep in the Vigilance Organization and has made abortive attempt to thwart the legal process by destroying the material evidence in connivance with some black sheep in our Organization. A detailed report was submitted to the Commissioner of Vigilance, J&K;, Jammu vide this office communication No. SSP/PRK/06/Secret -08/J dated 10.02.2006. On receipt of report, the Commissioner of Vigilance vide his office order No. 44/CV of 2006 dated 10.02.2006 placed the Investigating Officer Inspector Nissar Hussain Shah No. 49/SVO under suspension pending a formal departmental enquiry to look into the facts and circumstances of this serious matter. He further directed to withdraw investigation of above cited case from the said Inspector and entrust it to some other officer. Pursuant to the directions of Commissioner of Vigilance, the investigation of case has been transferred and entrusted to Shri Hari Krishan Nazar, Dy. SP (PRK) Vigilance Organization, Jammu vide this office order issued under endorsement No. SSP/PRK/06/394 -96/J dated 10.02.2006. He has further directed this office vide his communication No. SVO/FIR -20/05 -P/S -VOJ -1517 dated 10.02.2006 to take immediate steps to rebuild the record pertaining to the lost information. Taking serious note and acting swiftly into the matter, the Commissioner of Vigilance vide his office No. SVO/FIR -20/05 -P/S -VOJ -1518 dated 10.02.2006 has also issued the articles of charges against the delinquent official for the negligence and dereliction of duties as envisaged under Classification, Control and Appeal Rules. Hence, the detailed report is submitted for favour of information and kind perusal.;


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