MOHAMMAD SHAFI SHAH Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) In this appeal judgment and order dated 15-9-1999 of writ Court (learned single Judge) dismissing at pre-admission stage the writ petition is under challenge. By impugned judgment prayer of quashment of FIRs 119/98, 120/98 and 121/98, registered at Police Station Vigilance Organisation Kashmir; investigations of these cases; sanction to prosecute granted in the FIR 119/98 and 121/98; sought sanction to prosecute in other FIR(s) and intended prosecution of appellants/writ petitioners has been declined. The writ Court has come to the conclusion that during investigation of FIR 87/97, VOK, the Investigating agency had reason to suspect the commission of offences by the accused and found basis for registration of the cases, followed by subsequent investigation of the cases. In investigating these cases, no provision of law has been breached. The claim of infraction of rules or salutary provision meant for investigation of cases, is without any basis. Note was taken of claim of spot inspection by the Investigating agency and assertion that the conclusion arrived at by the Investigating agency are prima facie based on material collected, physical verification conducted and available records. The claim of biased/motivated investigation put-forth by appellants is answered as without any basis. The sanction accorded to prosecute the accused/appellants has been in accordance with law and the sanction is found accorded on application of mind and on consideration by the competent authority of the whole fact-situation and in entirety of circumstances of the case. The learned single Judge also noted that when the investigation is complete and sanction to prosecute has been accorded and report under S. 173, Cr. P.C. is to be forwarded to the competent Court for trial, then at such stage of proceedings, it is not advisable to exercise jurisdiction under Art. 226 of the Constitution and under S. 561-A, Cr. P.C. so as to set at naught the whole investigative process culminating in final report and sending up accused for trial after obtaining the sanction to prosecute the writ petitioners, the employees in the service of Public Health Engineering Department of the Government.

(2.) A brief resume of facts, necessary to appreciate the controversy and raised contentions on eitherside is as under :- The writ petitioners/appellants employees (Ex-Engineer, Asstt. Engineers' and Jr. Engineers') of Public Health Engineering Department of the Government were posted and rendered duty at the relevant time, in Public Health Engineering Division Handwara. FIR 89/97 PS VOK against different officials of PHE Department Handwara was registered by the Vigilance Organisation, after public complaints of large scale bunglings, fabrication of records, misappropriation of public money and various acts of omissions and commissions were voiced and the matter was referred to Vigilance Organisation through General Administration Department of the State Government. During spot inspection and investigations conducted by the Vigilance Organisation in FIR 89/97 (Ibid), the VOK Registered four FIRs' namely 118/98, 119/98, 120-98 and 121/98 against the concerned officials and contractors. FIR 118/98 is in respect of alleged embezzlement of 11-5 K.Mtrs. long replaced C.I. Pipes extending from Mawar Nallah to Filtration Plant Handwara, during the Course of execution of work in the year 1997-98. The investigation was closed in this case as "not proved" after it was found that the Pipes were physically existing on spot.

(3.) FIR 119/98 is in respect of embezzlement, and misappropriation of funds to the tune of Rs. 53,100/- after some Hand Pumps were found not, in place and physically existing at the indicated place(s) in Block Kupwara and Rajwara. These Hand Pumps were to be installed for supplying water in the District Kupwara under Minimum Need Programme Scheme during 1997-98. During investigation the allegation was found true by the Investigating agency in so far as seven Hand Pumps were seen not installed in different Blocks of District Kupwara and thereby Rs. 1,25.076 (value of Pumps) is misappropriated.