HC quashes petition of KAS officer

Published at December 11, 2018 12:20 AM 0Comment(s)3390views

Syed Rukaya


 Jammu and Kashmir High Court dismissed plea of KAS officer, Muhamad Mehrajudin Khan—allegedly involved in service book mutilation—seeking for quashing of the prosecution launched by Crime Branch against him.
The court of Justice Rashid Ali Dar dismissed the petition on the ground that the petition lacks merit. “There appears to be no merit and substance in the petition of the petitioner,” the court said.
The court after hearing the parties remarked that the petitioner is making an endeavor to believe version as projected by him and to treat the facts as pleaded by the Investigating Agency are vexatious and untrue.
“I am afraid to accept such a submission at preliminary stage of the investigation when the facts are hazy and Investigating Agency is yet to come up with its definite finding as required in terms of Section 173 Cr. PC,” Justice Rashid Ali said. He said that thwarting the investigation at the preliminary stage on the premise that the Investigating Officer has not obtained permission “would not in my opinion be sufficient to scuttle the statutory power of the police to investigate the case.”
Justice Rashid also said that the Investigating Agency has a statutory power to go ahead with the investigation. “The merit of the plea about the lack of power of the investigating Officer, if any, as raised in the petition can be considered even on conclusion of the investigation, provided ground is made out for same.”
The court remarked that the power under Section 561_A Cr.PC, is to be exercised sparingly, carefully and with caution.
“Only when such exercise is justified by the tests specifically laid in the Section itself. By its very nature, exercise of powers under said section is the exception and not a rule,” the court remarked.
“I am of the opinion that no case is made out for exercise of power under Section 561-A Cr. PC,” Justice Rashid Ali said.
The judgment came after the respondents submitted before the court that as per the records available with General Administration Department (GAD), the petitioner was due to retire in November 2018.
“As per the records (photo state copy of the service Book and APR’s) available with the GAD, the date of birth of Muhamad Mehrajudin Khan, KAS Commissioner/Secretary to Government, ARI and Training Department is November 09, 1958,” the respondents said.
The respondents further said that the officer/petitioner was requested by GAD to furnish the original service book and matriculation date of birth certificate vide department O. M dated December 26, 2017 followed by reminders “but despite multiple reminders the officer did not furnish the record,”
The respondents said that the petitioner submitted his original service book in response to GAD communication, mentioning his date of birth as November 09, 1961 instead of November 09, 1958.
In view of the contradictory DOB’s of the officer/petitioner the matter was then referred to Director Forensic Science Laboratory (FSL) J&K for examination of the service book.
Regarding FSL report, the respondents said that FSL expert had vide its report No. 148-Doc dated August 27, 2018 opined that the first page of the original service book has been inserted at a later stage and the provisional certificate in the original service book has been pasted on the typed certificate of Sheri-a-Kashmir University of Agricultural Sciences and Technology. “The accused dishonestly and fraudulently has thus resorted to change of his date of birth and the records of service book therefore, with the malafide intentions to enhance his service by about three years by the production of fake certificate to support his claim,” the respondents said.
It was submitted by the respondents that the acts of commission and omission on the part of the accused person prima facie disclosed the commission of offences punishable under Section 468, 420, 471 RPC. “Accordingly a case FIR No. 37/2018 under Section 468, 420, 471 RPC was registered in Police Station Crime Branch Kashmir on 31-08-2018.”
Earlier, a case was registered against the petitioner in Police Station, Crime Branch, Kashmir, for commission of offence punishable under Sections 420, 468 and 471 RPC and during the investigation the offence under Section 5(2) Prevention of Corruption Act was also added.
The investigation was entrusted to Inspector, Crime Branch, alleging that the petitioner has made insertions in the service book to alter his date of birth which would in turn extend the date of retirement.
“The impugned FIR has been registered without any preliminary enquiry which would have revealed that the changes in the service book pertaining the date of birth were made in pursuance of Cabinet Decision No. 175 dated 12-09-1988 reflected in Government order No. 521-RD of 1996 dated 21-08-1996 and a corrigendum to the said government order also dated 23-08-1996,” the petitioner through its counsel, Advocate Salih Pirzada said.
It was further submitted by the petitioners counsel that the “erroneous” entry of date of birth was replaced by the “original” year i.e, 1961 and “the same can be verified from University and other institutional records.” The counsel submitted that the investigating officer has enquired the credentials from the college in which the petitioner was enrolled during the year 1976 “to which the college has reiterated the year of birth to be 1961 as against what is alleged in the impugned FIR.” The counsel said that there is no order of the Magistrate under the PC Act authorizing the investigation under the impugned FIR.
“In absence of valid permission by a Magistrate, the investigation is in violation of the procedure under the Act, therefore liable to be set aside.” He further contended that the investigation is unwarranted under law.
“None of the ingredients of offence under Section 420 RPC are made out from the contents of FIR. Since there are no circumstances to construe wrongful gain or loss nor there is any element of deception thereby putting the department to loss,” he said. He said that the expert opinion referred to in the FIR does not establish the act of forgery against the petitioner neither any incriminating material is available with the investigating agency to connect the petitioner with making of a forged document or record.
“Therefore the registration of FIR for the offence under Section 468 RPC is without any legal sanctity but a manifestation of misuse of powers and police padding, as such, the FIR and investigation there under is liable to be quashed.” The counsel for the petitioner submitted that Coordinate Benches have granted relief in similar circumstances.
He also submitted that power under section 561-A Cr. PC, is to be exercised to prevent abuse of process of law and in furtherance of the cause of justice.
Sane military voices must for meaningful Indo-Pak dialogue: Soz
Srinagar: Senior Congress leader and former union minister, Prof. Saifuddin Soz on Monday said “sane military voices must for meaningful Indo-Pak dialogue and end long pending Kashmir dispute.”
“I heartily welcome Lt. General A.K. Bhat’s statement that there is no military solution to Kashmir and this issue can be resolved best through the dialogue process,” Soz in a statement issued here said. “It is a very sane voice and I am happy to say that General Bhat’s thinking is in line with many Generals in the Army and, particularly, Military leaders like General D.S. Hooda. He said “I urge Lt. General A.K. Bhat to move a step further and try to create awakening in India that by using extraordinary force in Kashmir, things can only worsen by the day.”
Soz said that Bhat could also convince the senior leadership in the Army that the draconian law like AFSPA has only worked against the interests of India by deepening the alienation over the years.


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