While terming the First Information Report (FIR) illegal, Jammu and Kashmir High Court on Monday passed judgment and quashed FIR against Principal Dental College Srinagar with regard to the procurement of dental machinery on exorbitant rates.
The court said that the records produced by the learned AAG N.H Shah for the perusal of the court are inappropriate and the FIR lodged in the matter is also wrong. “The record that was produced was in the most disorganized fashion, despite that I prefer to chose reticence over reprimand,” the court said.
The single bench of Justice Ali Mohammad Magrey while hearing the petition on the procurement of Dental Machinery on exorbitant rates by authorities of Government Dental College, Srinagar, quashed the order passed by the Learned Special Judge Anti-Corruption, Srinagar, under Section 156(3) Criminal Procedure Code dated 13 August 2012 with FIR no. 33/2012 Police Station, Vigilance Organization Kashmir.
The court quashed the order by inherent powers under Section 561-A Cr.P.C. and termed the FIR illegal. “The Preliminary Verification no. 12/2012, the impugned FIR No. 33/2012, Police Station, Vigilance Organization Kashmir, and the resultant investigation of the FIR is hereby quashed, as being illegal,” the court said.
The court also quashed the order passed by the learned special judge, Anticorruption dated June 05, 2017 while terming the order disorganized fashion.
“As a corollary, I also quash the order passed by the Learned Special Judge, Anticorruption dated June 05, 2017 as also being without due application of mind,” Justice Magrey said.
The court also barred the magistrate from exercising his jurisdiction in any manner against a public servant in any criminal proceeding not just under Chapter XV but also under Chapter XIV of the Criminal Procedure Code, in absence of a valid sanction for prosecution and “it attracts within its fold the proceedings under Section 156 (3) of the Criminal Procedure Code.”
“The investigation for offence under Section 120-B (2), without a sanction of Magistrate under Section 155 Cr.P.C. is illegal,” the court said. The court directed that the investigation under the Prevention of Corruption Act, Svt. 2006 is not laissez-aller (unrestrained freedom) but controlled by the mandatory provisions of Section 3 of the Act. The court remarked that for commencement of investigation, the Magistrate must grant permission to a designated police officer under Section 3 of the Jammu & Kashmir Prevention of Corruption Act, Svt. 2006.
“Every time the investigating officer is replaced by a new one, such permission must be obtained again at the occasion of replacement. Absence of this permission renders the investigation void ab initio,” the court said.
The court also said that there must be separate and reasoned order of entrustment of investigation to a non designated police officer of the vigilance organization, of and above the rank of a Sub-Inspector of Police, by a police officer of the vigilance organization not below the rank of Assistant Superintendent of Police. “Investigation by a designated police officer of and above the rank of a Deputy Superintend of Police is the rule and by a non-designated police officer of and above the rank of a Sub-Inspector is an exception. Entrustment order to a non-designated police officer must be followed by grant of permission by a Magistrate,” the court said.
The court also said that the grant of permission to a non-designated police officer is not to be as a matter of normal course by the Magistrate “but in exercise of judicial discretion, must pass a reasoned order for allowing the exceptional mode of investigation by a non-designated police officer.” The counsel for the petitioner, Advocate Salih Pirzada had stated before the court that the Chairman of the Committee is at liberty to co-opt any other Member technical / non technical expert in the interests of administration and patient care.