OF JAMMU AND KASHMIR AT SRINAGAR 561-A No. 45 of 2007 S. Surjeet Singh Petiotioner State of J&K and ors. respondents !Mr. Z.A. Qureshi, Advocate ^Mr. M.A. Rathore, AAG Hon'ble Mr. Justice Muzaffar Hussain Attar. Date: 22/122008 : J U D G M E N T :
By sheer instinctive compulsions, parents want their children not only to
surpass their own
achievements but also to soar to dazzling heights. Most children of our times
sacrifice much time of
their lives by not only working hard but literally burning the candle on both
ends to emerge
victorious in this highly competitive world. But unfortunately valueism has
lately got in some
cases transformed into materialism. People have started living only for this
world, which all of us
know is temporary phenomenon. Some amongst us, however, in pursuit of abounding
in worldly
possessions have cast to winds the settled principles and norms of life.
On the prosecution allegations, the case in hand throws-up one such glaring
example. Here on the
one hand is a child who seems to have sacrificed everything for attaining
excellence in the field of
academics, whereas on the other hand, a person, who is charged and entrusted for
conducting
examination in most fair and honest manner has as per case of the prosecution
ripped to shreds the
faith and confidence reposed in him. Going by the prosecution case, which of
course is subject to
proof at trial, that too beyond all shadow of doubt, the future of not only a
child, not only a family,
but of nation is put to jeopardy by blind greed of an individual. If the
offence is proved at the trial
the guilty deserves to given exemplary punishment so as to make the message loud
and clear that
there cannot be any compromise about the progress of future generations in
different walks of life.
Where shall the money power push our younger generation in such circumstances,
is a question
which begs answer. The right of one meritorious, poor and hapless student is
passed on to other
undeserving student, such incidents if not nipped in the bud, will produce a
nation of corrupt block-
heads. The frustrated youth may be thus lured into unwilling trap of crime, and
what not. The
greed of one person will thus play havoc with body politic of whole nation and
will end up into
what English jurist and parliamentarian Edmund Burkee in 1777 has said and I
quote;
“In a people generally corrupt liberty does not long last”.
The prosecution case as revealed in the report under section 173 Cr.P.C.
is that on 14th
November, 2005 a complaint was received in Police Station, Vigilance
Organization, Kashmir from
one Irshad Ahmad Kar alleging therein that one S. Surjit Singh, invigilator of
examination centre
no. 862 located in Woodland High School, Sonawar Srinagar, where the
complainant’s daughter
Ms. Tabinda Irshada was taking 12th class examination, demanded Rs. 3000/-from
the daughter of
the complainant for rendering her illegal services in the said examination. The
accused had further
threatened Ms Tabinda Irshad that in case amount demanded is not paid then any
damage can be
caused to her answer sheets.
Ms. Tabinda Irshad, informed her father, the complainant about what had happened
in the school
on 13th of November, 2005 when Ms. Tabinda Irshad had reported in the centre for
taking her 12th
class examination. Ms. Tabinda Irshad told her father, complainant, that as she
has worked very
hard and believe in leading honest life, she would not give any money to the
accused. The
complainant, who in his complaint has stated that he believes in honest dealings
in life, made a
complaint to Vigilance Organization, Kashmir, who in turn undertook pre-trap
proceedings and the
accused was allegedly caught red handed, and demanded amount of Rs 3000/- was
recovered from
him.
The accused was working as Supervisor/Inspector as per prosecution case. It is
further revealed that
accused was working as Supervisor/Inspector of the centre where daughter of the
complainant was
taking 12th class examination. After completion of the investigation,
prosecution filed report under
section 173 in the court of Special Judge Anti-Corruption, Kashmir in case FIR
33 of 2005. The
trial court after hearing the learned counsel for the prosecution and learned
counsel for the accused
vide its order dated 22nd of May, 2007 ordered for framing of charge against the
accused for the
offences punishable under section 5(2) Prevention of Corruption Act, read with
under section 3/5
Prevention of Unfair Means Act 1987. The charge sheet was also read over and
explained to the
accused on the same date by the trial court.
The accused has filed this petition under section 561-A Cr.P.C. seeking
quashment of the order
dated 22nd of May, 2007 passed by trial court on the grounds summarized as
under:
(1) The order of framing of charge against accused is bad as no sanction has
been obtained
from the competent authority before filing of the charge against accused.
(2) The accused can be deemed to be public servant under section 10 of
Prevention of Unfair
Means Examination Act but not under the provision of Prevention of Corruption
Act. The
accused being employee of an un-aided private school though charged with duty of
conducting examinations which are being conducted by Jammu and Kashmir State
Board
of School Education, is not government employee as such no proceedings can be
taken
against him. The accused has not been appointed by competent authority as
supervisor/inspector of the concerned examination centre.
(3) The instruction issued by Assistant Secretary vide order dated 10-10-2005
cannot confer
power on the superintendent to engage his staff which includes the accused as
well.
(4) The accused is deemed to be appointed as public servant by an oral order.
There being no
order of termination of his services, the sanction under section 6 of Prevention
of Anti-
Corruption was pre-requirement of law for filing challan against him.
(5) That under section 3/5 of Act of 1987 it is only on the complaint that
cognizance of the
offence can be taken which according to accused is lacking in the present case.
(6) That in terms of section (3) of the Jammu and Kashmir Unfair Means Act
procedure
provided for trying the accused is laid under section 259 of Code of Criminal
Procedure
and the Special Judge Anti Corruption being not Special Judge for the said Act
cannot try
the petitioner.
Before dealing with the submission made by the learned counsel for the
petitioner-accused one may
not lose sight of the fact that the 12th class examination and the results
thereof become basis for
students to shape their future career. The students who in order to not only
shape their future but
also shape future of their nation, work very hard and even sacrifice their
childhood and youth for
making such achievement. The uncouth and nefarious designs of some unscrupulous
elements of
the society to provide illegal assistance being in the positions of Supervisors
of the examination
centre are not only committing heinous offences but playing havoc with the
future of our future
generations. The offence against such persons if proved in appropriate
proceedings deserve to be
given exemplary punishment.
Heard learned counsel for parties.
The power U/s 561-A Code of Criminal Procedure saves the inherent powers of
this court ;and the
provisions couched is in negative language. This Section is reproduced as
under:-
“Nothing in this Code shall be deemed to limit or affect the inherent
power
of the High Court to make such orders as may be necessary to give effect to any
order under this Code, or to prevent abuse of the process of any Court or
otherwise
to secure the ends of justice.”
Section 435 Code of Criminal Procedure after it was amended in the year
1978 Sec. 4(a)
was inserted in the said section which reads as under:
“Section 435[(4-a)]
The powers of revision conferred by this section shall not be exercised in
relation to
any interlocutory order passed in any appeal, inquiry, trial or other
proceedings.”
A Division Bench of this Court had an occasion of considering the impact
of said amended
provisions on the interlocutory orders passed by trial court. The judgment is
reported in “1982 KLJ
1” . The said judgment interalia provided that framing of charge is an
interlocutory order and
cannot be challenged in the revision petition. The Division Bench, however,
added that if
challenge to the framing of charge is made, not on the merits of controversy
involved in the case,
but independent of that, and the plea of the accused if accepted, would render
dismissal of the case
against him, then on such grounds order of framing of charge can be challenged
by filing of
revision petition.
Inherent power of this Court, however, is not limited by any such legal
constrains and no
such legal inhibition can be read into the inherent powers of this Court. This
Court in order to give
effect to any order under the Code of Criminal Procedure or to prevent abuse of
process any court,
or otherwise to secure the ends of justice can exercise its inherent powers.
The issue raised by the petitioner, if accepted, and if would result in
his discharge, in such
circumstances even a revision petition is held to be competent to challenge the
order which is
impugned in this petition. But in view of discussion made herein after and
result thereof, that
remedy would have not been available to petitioner
In order to deal with the submissions of Mr. Z.A. Qureshi, learned counsel
for petitioner it
becomes imperative and necessary to refer to relevant provisions of the Act of
1987 and
provisions of Corruption Act. The J&K (Prevention of Unfair means) Examination
Act 1987, in
brief referred to Act of 1987, in its preamble states that it is an Act to
regulate the conduct of
examinations and to provide for punishment of unfair means used or committed in
such
examination.
Section 2(a,b,c,d,e,f & g) are reproduced as under:-
(a) ” “board” means the Jammu and Kashmir State Board of Schools Education
established under the Jammu and Kashmir Board of School Education Act,
1975;
(b) “candidate” means a person appearing or claiming to appear in an
examination;
(c) “competent authority” means an University or the Board as the case may be;
(d) “conduct of examination” includes supervision of examinations, preparation
or
distribution of question papers, coding, evaluation, processing of examination,
results and certification thereof;
(e) “examination” means any examination held by an University or the Board;
(f) “examination centre” means the premises specified by the Competent
authority
as such for holding of any examination;
(g) “inspection team” means a team of two or more persons appointed and
authorized by the competent authority to inspect any examination centre and
submit its report to the competent authority about the conduct of examination of
each such examination centre:”
Section 3(a,b,c),8,9,10, & 11 of (Prevention of Unfair Means) Examinations Act,
1987; are
reproduced as under:-
(a) be bound, responsible to act and to perform their duties in accordance
with and
as required by or under the statutes or the regulations, as the case may be;
(b) not to allow, connive at or facilitates the commission of any unfairmeans
by any
candidate;
(c) not to allow any person other than the members of the inspection team, to
enter
or loiter in or around the examination centre.
Section 8. Cognizance of offences and procedure for trial;
“Notwithstanding anything contained in the Code of Criminal Procedure
Samvat 1989:-
(i)all offences under this Act shall be triable by a Judicial Magistrate of 1st
Class empowered by the Government in this behalf;
(ii) no Court shall take cognizance of any offence under this Act except on a
complaint lodged by the competent authority or an officer authorized by the
competent authority;
(iii) all offences under this Act shall be triable in accordance with the
procedure laid down under section 259-A of the Code of Criminal Procedure,
Samvat 1989.”
“Section 9. Misconduct by a candidate
If any candidate commits misconduct or uses unfair-means he shall be liable
to disciplinary action under the statutes and the regulations as the case may
be.”
“Section 10. Persons engaged in the conduct of examination to be public
servants;
Every person engaged in the conduct of the examination shall be deemed to
be public servant within the meaning of section 21 of the Ranbir Penal
Code.”
“Section 11 Application of other laws not barred;
The provisions of this Act shall be in addition to and not in derogation of any
other law in force on the subject.”
The Prevention of Corruption Act 2006 (1949A.D), in brief “Act of 2006”,
in its preamble
provides that it is an Act for more effectively dealing with bribery and
corruption.
Section 2 of the Act of 2006 provides that for the purpose of this Act the
expression “public
servant” means a public servant as defined in Section 21 of the State Ranbir
Penal Code and shall
include,- the relevant part of the section is reproduced as under:-
(a) A person who is or has been a member of either House of State Legislature
or a
member (including Minister of State) of the Council of Ministers;
(b) Every person who is or has been under the employment of Government whether
on permanent, temporary or work-charge basis;
(c) Every officer, servant or member (by whatever name called) of a
Corporation or
of a corporate or other body which is established by or under an Act of the
State
Legislature or of Parliament in force in the state.”
Section 5 of the Act 2006 which defines criminal misconduct for the
purpose of disposal of
this case relevant part thereof is reproduced as under:
“(1) A public servant is said to commit the offence of Criminal misconduct:-
(a) if he habitually accepts or obtains or agrees to accept or attempts to
obtain from any
person for himself or for any other person, any gratification (other than legal
remuneration) as a motive or reward such as is mentioned in section 161 of the
State Ranbir Penal Code, Samvat 1989;
(b) if he habitually accepts or obtains or agrees to accept or attempts to
obtain for
himself or for any other person, any valuable thing without consideration or for
a
consideration which he knows to be inadequate, from any person whom he knows
to have been, or to be, or to be likely to be concerned in any proceedings or
business transacted or about to be transacted by him, or having any connection
with
the official functions of himself or of any public servant to whom he is
subordinate,
or from any person whom he knows to be interested in or related to the persons
so
concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts
for his own
use any property entrusted to him or under his control as a public servant or
allows
any other person so to do; or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as
public
servant obtains for himself or for any other person any valuable thing or
pecuniary
advantage; or
(e) if he or any person on his behalf if in possession or has, at any time
during the
period of his office, been in possession, for which the public servant can not
satisfactorily account, of pecuniary resources or property disproportionate to
his
known sources of income.
The petitioner, it is stated at the time he was asked to, to be the part
of the Supervisory staff
of examination centre No. 862 Wood-land High School, Sonawar Srinagar, was an
employee of the
said School, which is claimed to be an unaided private school. The Board of
School Education
which is the competent authority acts through its Officers and in this case the
competent authority
acted through Assistant Secretary who vide his communication no. F9Sup-Kd-Exam )
05 New
Campus Bemina dated 10th Oct. 2005 requested Vijay Mishry to appoint
supervisory staff of the
examination centre No.862 Woodland High School, Sonawar Srinagar. The petitioner
was
appointed as Inspector/supervisory staff in pursuance of the said authorization
of J&K Board of
School Education. The petitioner in such circumstances has been appointed by
the competent
authority as Inspector/part of Supervisory Staff for examination centre No.
862. The contention of
the learned counsel for petitioner that the petitioner has not been appointed by
any competent
authority pales into in-significance and merits rejection.
The learned counsel for petitioner has challenged the order of framing of
charge against the
petitioner by taking diametrically opposite stand viz on the one hand, the
learned counsel submits
that the petitioner at the relevant time was an employee of an un-aided school
and was not as such a
public servant. In the submission of learned counsel for petitioner, the
provisions of Act of 2006
and Act 1987 could not be invoked against him as he being not a public servant.
On the other hand,
the learned counsel submits that no cognizance could be taken in respect of
offence alleged to
have been committed by the accuse petitioner as no sanction has been obtained
from the competent
authority before launching of prosecution against the petitioner. The
submission though mutually
destructive of each other, however, fall to ground lock, stock and barrel for
the following reasons
and on the following legal grounds.
Section 10 of the Act 1987 mandates that every person in the engagement of
conducting of
examination shall be deemed to be public servant, within the meaning of Section
21 of RPC. The
expression “every person” used in this section makes it writ large on the face
of the statute and in
order to place proper interpretation and construction to make it in tune with
the purpose sought to
be achieved by enacting Act of 1987, it can be well said that even a private
person who is not
connected in any manner whatsoever in the affairs of the State, even a person
who is working in a
private un-aided institution when engaged in the conduct of examination, by the
application of
Section 10 of Act 1987 automatically becomes public servant within the meaning
of Section 21
RPC. Section 10 of the Act 1987 becomes an added clause of section 21 RPC.
The petitioner in view of the fact that he was engaged to conduct the
examination is
deemed to be public servant within meaning of Sec. 21 of RPC.
Section 2 of Act 2006, provides, that, for the purpose of said Act,
“Public servant” means a
public servant as defined in section 21 of RPC.
The petitioner in view of this lucid and explicit statement of the
legislature made in section
2 of Act of 2006 is a public servant for the purpose of Act 2006 as well, as
because, section 10 of
Act 1987 deems petitioner to be a public servant within the meaning of Section
21 of RPC.
A conjoint reading of above said provisions admit of no doubt or ambiguity
about
petitioner’s being public servant both for the purpose of Act 1987 and Act 2006.
Now turning to next ground of challenge, which has been projected about
failure of
prosecution to obtain sanction for launching prosecution against the
petitioner. The very fact that
the engagement/appointment of petitioner as Inspector/member of Supervisory
staff for conducting
examination in centre 862 located at Woodland High school, Sonawar Srinagar, by
the very nature
of the duty to be performed was only for the period for which the examination
was to be conducted.
The nature of his very engagement was coterminous with the completion of
examination itself. By
nature of the very engagement the petitioner ceased to be a public servant
when the examination
was over.
Section 6 of the act of 2006 provides, that no court shall take cognizance
of an offence
punishable u/s 161, or section 164 , Section 165 or 167-A or sub section (3) of
section 5 of the act
2006, alleged to have been committed. The relevant part of section 6 is
reproduced as under:-
“No court shall take cognizance of an offence punishable under section 161
or section 164 or section 165 or section 167-A of the State Ranbir Penal
Code, Samvat 1989 or under sub-section (2) or sub-section (3) of section 5 of
this Act, alleged to have been committed by a public servant except with the
previous sanction:-
(a) in the case of a person who is employed in connection with the affairs of
the
State and is not removable from his office save by or with the sanction of
the Government;
(b) in the case of any other person, of the authority competent to remove him
from his office.”
The plain language of section 6 of Act 2006 mandates that court cannot
take cognizance of
the offence unless previous sanction as required is issued by the competent
authority. Section 6 of
the Act 2006 has no relevance for conducting of investigation and only
prohibits the court of
competent jurisdiction to take cognizance of offence unless there is previous
sanction issued by
competent authority necessary for the prosecution of the accused. At the time
when the challan was
filed against the petitioner admittedly, he had ceased to be a public servant,
and no previous
sanction necessary for prosecution was required to be obtained.
The Honb’ble Supreme Court in case titled state of Kerala (appellant) v
Padmanabhan Nair
(Respondent) reported in (1999) 5 SCC 690 has held that the accused facing
prosecution for
offence under PC Act cannot claim any immunity on the ground for want of
sanction, if he ceased
to be a public servant, on the date when the court took said cognizance. Para 6
is reproduced as
under:-
“Para 6. The correct legal position, therefore, is that an accused facing
prosecution for offences under the PC Act cannot claim any immunity on the
ground of want of sanction, if he ceased to be a public servant on the date
when the court took cognizance of the said offences. So the High Court was
at any rate wrong in quashing the prosecution proceedings insofar as they
related to offences under the PC Act. ”
The Hon’ble Supreme Court again in case state of J&K appellant v.
Charan Dass Puri
(Respondent).
reported in (1999) 5 SCC 738 relying on the earlier judgment of the Suprme court
held that when
the trial court is required to take cognizance of the offence and if the
accused is ceased to be
public servant, no previous sanction is necessary in such situation. Para 4 of
judgment is
reproduced as under:-
“Para 4. This Court in Kalicharan Mahapatra v. State of Orissa has held that if
a
public servant has ceased to be public servant at the time the court is called
upon to
take cognizance of the offence, no previous sanction is necessary. This Court
also
referred to its previous decision in R. Balakrishna Pillai v. State of Kerala on
which
reliance has been placed by the High Court for taking the contrary view and has
pointed out how that judgment can be of no relevance where the offence alleged
is
an offence punishable under the Prevention of Corruption Act, 1947. In para 13
of
the judgment this Court has specifically dealt with this aspect. Thus, the law
on this
point is quite clear that in case of a public servant who is alleged to have
committed
an offence punishable under the Prevention of Corruption Act, no previous
sanction
would be required if by the time the court is called upon to take cognizance of
that
offence he has ceased to be public servant. The High Court was wrong in taking
the
contrary view. This appeal is, therefore, allowed, judgment and order passed by
the
High Court are set aside and the trial court is directed to proceed further with
the
trial of the case.”
Another ground projected by learned counsel for petitioner is that
Special Judge Anti-
corruption Srinagar was not competent to take cognizance of the offence u/s
3/5 of the Act of
1987, which cognizance of the offence could be taken only on a complaint filed
by the authority
mentioned in the Act of 1987. It was further submitted that under the Act 1987
the procedure
provided for conducting trial is section 259 (a) Code of Criminal Procedure. To
answer this
submission reference is required to be made to the J&K Criminal Law amendment
Act 1958, in
brief Act of 1958.
Section 6 of the Act of 1958 provides, that Government may, by
notification in the
Government Gazette, appoint as many Special Judges as may be necessary for such
area or areas as
may be specified in the notification to try the offences punishable under
sections 161, 165 or 165-
A of the Ranbir Penal Code, of sub section (2) of section 5 of the Prevention of
Corruption Act,
2006. Section 7 of the Act of 1958 is reproduced as under:-
“Section 7 (3) Cases triable by Special Judge
(1)..
(2)..
(3) When trying any case a Special Judge may also try and offence other
than an offence specified in section 6 with which the accused may, under
the Code of Criminal Procedure, 1989, be charged at the same trial.
Sub section (3) of section 7 clothes Special Judge with powers to try any
offence other than an
offence specified in section 6 with which the accused may, under the Code of
Criminal Procedure,
1989, be charged at the same trial. The special Judge Anti Corruption thus gets
jurisdiction to try
the accused for commission of offence under Act of 1987 as well. The said
purposive
interpretation requires to be placed on the said provisions as the laws are
enacted and institutions
created for the benefit of society as a whole. The ground of challenge so made
about the conduct of
trial by special judge of offence u/s 3/5 of Act 1987 also fails. The xerox copy
of record further
reveals that at the request of Vigilance Organisation, J&K State Board of School
Education has also
made a complaint under section 3/5 of the Act 1987, which is part of the record
before trial court,
and accordingly the trial court has took cognizance of the said offence as well.
The trial court under
these circumstances has legally and validly framed the charge against the
accused for commission
of offence u/s 5(2) of Prevention of Corruption Act read with section 3/5
Prevention of Unfair
means Act 1987.
The learned counsel for petitioner has referred to judgment of the Supreme
court titled State
of Gujrat appellant v. I. Manshankar Prabhsha Nair Dwivi, reported in 1973 SC
330, to support
his contention that the petitioner though charged with the duty of supervising
examination cannot
be said to be Public Servant. The facts of the said case are materially
different from this case in as
much as a senior lecturer of Government College was appointed as an examiner
to conduct
Physics practical examination which was to be held by Gujrat University. The
Hon’ble Supreme
Court after considering the matter held that the said accused was not public
servant within
definition of 21 of Indian Penal Code. In the said case, there was no law
projected or shown that
by a Special statute the person engaged for conducting of examination was to be
deemed to be a
public servant.
The said judgment in the facts of the present case does not support the
contention of the
petitioner. The petitioner has further relied upon judgment titled State of
Orrisa appellant v.
Birakishore Naik respondent reported in AIR 1964 Orrisa 202. In the said case
son of Extra
Departmental Agent of Post office looked after father’s official duty without
any recognition or
appointment by postal department. It was held that he had no right to hold the
post and, therefore,
could not be said to be public servant. The said judgment turns on its own facts
which are
materially different from facts of the case in hand. As in this case on the
orders of the competent
authority services of petitioner were engaged for conducting of examination and
in terms of section
10 of the Act 1987, as already held that the petitioner is deemed to be public
servant.
On the grounds and for reasons stated above in order to secure the ends of
justice it is lawful
that trial court shall proceed against the accused in accordance with law. The
Criminal Justice
system in order to be reinvigorated demands expeditious disposal of the
criminal cases. The
expeditious disposal of the criminal cases has been held to be a fundamental
right guaranteed
under article 21 of the Constitution. It is in public interests also to decide
the cases more
particularly criminal cases at the earliest. Accused if found guilty at the end
of the trial shall be
punished properly, and if found innocent shall be declared so at earliest. This
is in over all interests
of society.
In the upshot of what has been discussed above, this petition under
section 561-A fails and
is dismissed. The order framing charge against petitioner in held to be legal.
The trial court is
directed to proceed with the case in accordance with law.
(Muzaffar Hussain Attar)
Judge
Srinagar
22.12.08
Ayaz