{"id":252634,"date":"1970-01-01T00:00:00","date_gmt":"1969-12-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/organization-vs-before-dealing-with-the"},"modified":"2015-10-03T19:55:56","modified_gmt":"2015-10-03T14:25:56","slug":"organization-vs-before-dealing-with-the","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/organization-vs-before-dealing-with-the","title":{"rendered":"Organization vs Before Dealing With The …"},"content":{"rendered":"
Jammu High Court<\/div>\n
Organization vs Before Dealing With The …<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n  OF JAMMU AND KASHMIR AT SRINAGAR          \n561-A  No. 45 of 2007\nS. Surjeet Singh\n  Petiotioner\nState of J&K and ors.\n  respondents\n!Mr. Z.A. Qureshi, Advocate\n^Mr. M.A. Rathore, AAG  \n\nHon'ble Mr. Justice Muzaffar  Hussain Attar.\nDate: 22\/122008 \n: J U D G M E N T :\n<\/pre>\n
By sheer instinctive compulsions, parents want their children not only to
\nsurpass their own
\nachievements but also to soar to dazzling heights. Most children of our times
\nsacrifice much time of
\ntheir lives by not only working hard but literally burning the candle on both
\nends to emerge
\nvictorious in this highly competitive world.  But unfortunately valueism has
\nlately got in some
\ncases transformed into materialism.  People have started living only for this
\nworld, which all of us
\nknow is temporary phenomenon.  Some amongst us, however, in pursuit of abounding
\nin worldly
\npossessions have cast to winds the settled principles and norms of life.
\nOn the prosecution allegations, the case in hand throws-up one such glaring
\nexample. Here on the
\none hand is a child who seems to have sacrificed everything for attaining
\nexcellence in the field of
\nacademics, whereas on the other hand, a person, who is charged and entrusted for
\nconducting
\nexamination in most fair and honest manner has as per case of the prosecution
\nripped to shreds the
\nfaith and confidence reposed in him. Going by the prosecution case, which of
\ncourse is subject to
\nproof at trial, that too beyond all shadow of doubt, the future of not only a
\nchild, not only a family,
\nbut of nation is put to jeopardy by blind greed of an individual.  If the
\noffence is proved at the trial
\nthe guilty deserves to given exemplary punishment so as to make the message loud
\nand clear that
\nthere cannot be any compromise about the progress of future generations in
\ndifferent walks of life.\n<\/p>\n
Where shall the money power push our younger generation in such circumstances,
\nis a question
\nwhich begs answer. The right of one meritorious, poor and hapless student is
\npassed on to other
\nundeserving student, such incidents if not nipped in the bud, will produce a
\nnation of corrupt block-\n<\/p>\n
heads.  The frustrated youth may be thus lured into unwilling trap of crime, and
\nwhat not.  The
\ngreed of one person will thus play havoc with body politic of whole nation and
\nwill end up into
\nwhat English jurist and parliamentarian Edmund Burkee in 1777 has said and I
\nquote;\n<\/p>\n
“In a people generally corrupt liberty does not long last”.\n<\/p>\n
        The prosecution case as revealed in the report under section 173<\/a> Cr.P.C.
\nis that on 14th
\nNovember, 2005 a complaint was received in Police Station, Vigilance
\nOrganization, Kashmir from
\none Irshad Ahmad Kar alleging therein that one S. Surjit Singh, invigilator of
\nexamination centre
\nno. 862 located in Woodland High School, Sonawar Srinagar, where the
\ncomplainant’s daughter
\nMs. Tabinda Irshada was taking 12th class examination, demanded Rs. 3000\/-from
\nthe daughter of
\nthe complainant for rendering her illegal services in the said examination.  The
\naccused had further
\nthreatened Ms Tabinda Irshad that in case amount demanded is not paid then any
\ndamage can be
\ncaused to her answer sheets.\n<\/p>\n
Ms. Tabinda Irshad, informed her father, the complainant about what had happened
\nin the school
\non 13th of November, 2005 when Ms. Tabinda Irshad had reported in the centre for
\ntaking her 12th
\nclass examination.  Ms. Tabinda Irshad told her father, complainant, that as she
\nhas worked very
\nhard and believe in leading honest life, she would not give any money to the
\naccused.  The
\ncomplainant, who in his complaint has stated that he believes in honest dealings
\nin life, made a
\ncomplaint to Vigilance Organization, Kashmir, who in turn undertook pre-trap
\nproceedings and the
\naccused was allegedly caught red handed, and demanded amount of Rs 3000\/- was
\nrecovered from
\nhim.\n<\/p>\n
The accused was working as Supervisor\/Inspector as per prosecution case. It is
\nfurther revealed that
\naccused was working as Supervisor\/Inspector of the centre where daughter of the
\ncomplainant was
\ntaking 12th class examination. After completion of the investigation,
\nprosecution filed report under
\nsection 173<\/a> in the court of Special Judge Anti-Corruption, Kashmir in case FIR
\n33 of 2005.  The
\ntrial court after hearing the learned counsel for the prosecution and learned
\ncounsel for the accused
\nvide its order dated 22nd of May, 2007 ordered for framing of charge against the
\naccused for the
\noffences punishable under section 5(2)<\/a> Prevention of Corruption Act, read with
\nunder section 3\/5
\nPrevention of Unfair Means Act 1987. The charge sheet was also read over and
\nexplained to the
\naccused on the same date by the trial court.
\nThe accused has filed this petition under section 561-A<\/a> Cr.P.C. seeking
\nquashment of the order
\ndated 22nd of May, 2007 passed by trial court on the grounds summarized as
\nunder:\n<\/p>\n
(1)     The order of framing of charge against accused is bad as no sanction has
\nbeen obtained
\nfrom the competent authority before filing of the charge against accused.
\n(2)     The accused can be deemed to be public servant under section 10 of
\nPrevention of Unfair
\nMeans Examination Act but not under the provision of Prevention of Corruption
\nAct<\/a>.  The
\naccused being employee of an un-aided private school though charged with duty of
\nconducting examinations which are being conducted by Jammu and Kashmir State
\nBoard
\nof School Education, is not government employee as such no proceedings can be
\ntaken
\nagainst him.  The accused has not been appointed by competent authority as
\nsupervisor\/inspector of the concerned examination centre.
\n(3)     The instruction issued by Assistant Secretary vide order dated 10-10-2005
\ncannot confer
\npower on the superintendent to engage his staff which includes the accused as
\nwell.\n<\/p>\n
(4)     The accused is deemed to be appointed as public servant by an oral order.
\nThere being no
\norder of termination of his services, the sanction under section 6 of Prevention
\nof Anti-\n<\/p>\n
Corruption was pre-requirement of law for filing challan against him.
\n(5)     That under section 3<\/a>\/5<\/a> of Act of 1987 it is only on the complaint that
\ncognizance of the
\noffence can be taken which according to accused is lacking in the present case.
\n(6)     That in terms of section (3) of the Jammu and Kashmir Unfair Means Act
\nprocedure
\nprovided for trying the accused is laid under section 259<\/a> of Code of Criminal
\nProcedure
\nand the Special Judge Anti Corruption being not Special Judge for the said Act
\ncannot try
\nthe petitioner.\n<\/p>\n
Before dealing with the submission made by the learned counsel for the
\npetitioner-accused one may
\nnot lose sight of the fact that the 12th class examination and the results
\nthereof become basis for
\nstudents to shape their future career. The students who in order to not only
\nshape their future but
\nalso shape future of their nation, work very hard and even sacrifice their
\nchildhood and youth for
\nmaking such achievement.  The uncouth and nefarious designs of some unscrupulous
\nelements of
\nthe society to provide illegal assistance being in the positions of Supervisors
\nof the examination
\ncentre are not only committing heinous offences but playing havoc with the
\nfuture of our future
\ngenerations.  The offence against such persons if proved in appropriate
\nproceedings deserve to be
\ngiven exemplary punishment.\n<\/p>\n
Heard learned counsel for parties.\n<\/p>\n
The power U\/s 561-A  Code of Criminal Procedure  saves the inherent powers of
\nthis court ;and the
\nprovisions couched is in negative language. This Section is reproduced as
\nunder:-\n<\/p>\n
        “Nothing in this Code shall be deemed to limit or affect the inherent
\npower
\nof the High Court to make such orders as may be necessary to give effect to any
\norder under this Code, or to prevent abuse of the process of any Court or
\notherwise
\nto secure the ends of justice.”\n<\/p>\n
        Section 435<\/a>  Code of Criminal Procedure  after it was amended in the year
\n1978 Sec. 4(a)
\nwas inserted in the said section which reads as under:\n<\/p>\n
        “Section 435<\/a>[(4-a)]
\nThe powers of revision conferred by this section shall not be exercised in
\nrelation to
\nany interlocutory order passed in any appeal, inquiry, trial or other
\nproceedings.”\n<\/p>\n
        A Division Bench of this Court had an occasion of considering  the impact
\nof said amended
\nprovisions on the interlocutory orders passed  by trial court. The judgment is
\nreported in “1982 KLJ
\n1” . The said judgment interalia  provided that  framing of charge  is an
\ninterlocutory order and
\ncannot be challenged in the revision petition. The Division Bench, however,
\nadded that if
\nchallenge to the framing of charge is made, not on the merits of controversy
\ninvolved in the case,
\nbut independent of that, and the plea of the accused if accepted, would render
\ndismissal of the case
\nagainst him, then on such grounds order of framing of charge can be challenged
\nby filing of
\nrevision petition.\n<\/p>\n
        Inherent power of this Court, however, is not limited by any such legal
\nconstrains and no
\nsuch legal inhibition can be read into the inherent powers of this Court. This
\nCourt  in order to  give
\neffect to any order under the Code<\/a> of Criminal Procedure  or to prevent abuse of
\nprocess any court,
\nor otherwise to secure the ends of justice can exercise its inherent powers.\n<\/p>\n
        The issue raised by the petitioner,  if accepted,  and if would result in
\nhis discharge,  in such
\ncircumstances even a revision petition is held to be competent to challenge the
\norder which is
\nimpugned in this petition. But in view  of discussion made herein after and
\nresult thereof, that
\nremedy would have not been available to petitioner
\n        In order to deal with the submissions of Mr. Z.A. Qureshi, learned counsel
\nfor petitioner it
\nbecomes imperative  and necessary  to refer to relevant provisions of the Act of
\n1987 and
\nprovisions of Corruption Act<\/a>.  The J&K (Prevention of Unfair means) Examination
\nAct 1987, in
\nbrief referred to Act of 1987, in its preamble states  that it is an Act  to
\nregulate  the conduct  of
\nexaminations and to provide for  punishment of unfair means used or committed in
\nsuch
\nexamination.\n<\/p>\n
        Section 2<\/a>(a,b,c,d,e,f & g)  are reproduced as under:-\n<\/p>\n
(a)     ” “board” means the Jammu and Kashmir State Board of Schools Education
\nestablished under the Jammu and Kashmir Board of School Education Act,
\n1975;\n<\/p>\n
(b)     “candidate” means a person appearing or claiming to appear in an
\nexamination;\n<\/p>\n
(c)     “competent authority” means an University or the Board as the case may be;\n<\/p>\n
(d)     “conduct of examination” includes supervision of examinations, preparation
\nor
\ndistribution of question papers, coding, evaluation, processing of examination,
\nresults and certification thereof;\n<\/p>\n
(e)     “examination” means any examination held by an University or the Board;\n<\/p>\n
(f)     “examination centre” means the premises specified by the Competent
\nauthority
\nas such for holding of any examination;\n<\/p>\n
(g)     “inspection team” means a team of two or more persons appointed and
\nauthorized by the competent authority to inspect any examination centre and
\nsubmit its report to the competent authority about the conduct of examination of
\neach such examination centre:”\n<\/p>\n
Section 3<\/a>(a,b,c),8,9,10, & 11 of (Prevention of Unfair Means) Examinations Act,
\n1987;  are
\nreproduced as under:-\n<\/p>\n
(a)     be bound, responsible to act and to perform their duties in accordance
\nwith and
\nas required by or under the statutes or the regulations, as the case may be;\n<\/p>\n
(b)     not to allow, connive at or facilitates the commission of any unfairmeans
\nby any
\ncandidate;\n<\/p>\n
(c)     not to allow any person other than the members of the inspection team, to
\nenter
\nor loiter in or around the examination centre.\n<\/p>\n
Section 8<\/a>. Cognizance of offences and procedure for trial;
\n“Notwithstanding anything contained in the Code<\/a> of Criminal Procedure
\nSamvat 1989:-\n<\/p>\n
(i)all offences under this Act shall be triable by a Judicial Magistrate of 1st
\nClass empowered by the Government in this behalf;\n<\/p>\n
(ii) no Court shall take cognizance of any offence under this Act except on a
\ncomplaint lodged by the competent authority or an officer authorized by the
\ncompetent authority;\n<\/p>\n
(iii) all offences under this Act shall be triable in accordance with the
\nprocedure laid down under section 259-A<\/a> of the Code of Criminal Procedure,
\nSamvat 1989.”\n<\/p>\n
“Section 9<\/a>. Misconduct by a candidate
\nIf any candidate commits misconduct or uses unfair-means he shall be liable
\nto disciplinary action under the statutes and the regulations as the case may
\nbe.”\n<\/p>\n
“Section  10<\/a>. Persons engaged in the conduct of examination to be public
\nservants;\n<\/p>\n
Every person engaged in the conduct of the examination shall be deemed to
\nbe public servant within the meaning of section 21 of the Ranbir Penal
\nCode.”\n<\/p>\n
“Section 11<\/a> Application of other laws not barred;
\nThe provisions of this Act shall be in addition to and not in derogation of any
\nother law in force on the subject.”\n<\/p>\n
        The Prevention of Corruption Act<\/a> 2006 (1949A.D), in brief “Act of 2006”,
\nin its preamble
\nprovides that it is an Act for more effectively dealing with bribery and
\ncorruption.\n<\/p>\n
Section 2<\/a> of the Act of 2006 provides  that for the purpose of this Act the
\nexpression “public
\nservant” means a public servant as defined in Section 21 of the State Ranbir
\nPenal Code and shall
\ninclude,- the relevant part of the section is reproduced as under:-\n<\/p>\n
        “Section 2<\/a>.\n<\/p>\n
(a)     A person who is or has been a member of either House of State Legislature
\nor a
\nmember (including Minister of State) of the Council of Ministers;\n<\/p>\n
(b)     Every person who is or has been under the employment of Government whether
\non permanent, temporary or work-charge basis;\n<\/p>\n
(c)     Every officer, servant or member (by whatever name called) of a
\nCorporation or
\nof a corporate or other body which is established by or under an Act of the
\nState
\nLegislature or of Parliament in force in the state.”\n<\/p>\n
        Section 5<\/a> of the Act 2006 which defines criminal misconduct for the
\npurpose of disposal of
\nthis case relevant part  thereof is reproduced  as under:
\n“(1) A public servant is said to commit the offence of Criminal misconduct:-\n<\/p>\n
(a)     if he habitually accepts or obtains or agrees to accept or attempts to
\nobtain from any
\nperson for himself or for any other person, any gratification (other than legal
\nremuneration) as a motive or reward such as is mentioned in section 161 of the
\nState Ranbir Penal Code, Samvat 1989;\n<\/p>\n
(b)     if he habitually accepts or obtains or agrees to accept or attempts to
\nobtain for
\nhimself or for any other person, any valuable thing without consideration or for
\na
\nconsideration which he knows to be inadequate, from any person whom he knows
\nto have been, or to be, or to be likely to be concerned in any proceedings or
\nbusiness transacted or about to be transacted by him, or having any connection
\nwith
\nthe official functions of himself or of any public servant to whom he is
\nsubordinate,
\nor from any person whom he knows to be interested in or related to the persons
\nso
\nconcerned; or\n<\/p>\n
(c)     if he dishonestly or fraudulently misappropriates or otherwise converts
\nfor his own
\nuse any property entrusted to him or under his control as a public servant or
\nallows
\nany other person so to do; or\n<\/p>\n
(d)     if he, by corrupt or illegal means or by otherwise abusing his position as
\npublic
\nservant obtains for himself or for any other person any valuable thing or
\npecuniary
\nadvantage; or\n<\/p>\n
(e)     if he or any person on his behalf if in possession or has, at any time
\nduring the
\nperiod of his office, been in possession, for which the public servant can not
\nsatisfactorily account, of pecuniary resources or property disproportionate to
\nhis
\nknown sources of income.\n<\/p>\n
        The petitioner, it is stated at the time he was asked to, to be the part
\nof the Supervisory staff
\nof examination centre No. 862 Wood-land High School, Sonawar Srinagar, was an
\nemployee of the
\nsaid School, which is claimed to be an unaided private school. The Board of
\nSchool Education
\nwhich is the competent authority acts through its Officers and in this case the
\ncompetent authority
\nacted through Assistant Secretary who vide his communication no. F9Sup-Kd-Exam )
\n05 New
\nCampus Bemina dated 10th Oct. 2005 requested Vijay Mishry  to appoint
\nsupervisory staff of the
\nexamination centre No.862 Woodland High School, Sonawar Srinagar. The petitioner
\nwas
\nappointed as Inspector\/supervisory staff in pursuance of the said authorization
\nof J&K Board of
\nSchool Education. The petitioner in such circumstances has been appointed  by
\nthe competent
\nauthority as Inspector\/part of Supervisory Staff  for examination centre No.\n<\/p>\n
862. The contention of
\nthe learned counsel for petitioner that the petitioner has not been appointed by
\nany competent
\nauthority pales into in-significance and merits rejection.\n<\/p>\n
        The learned counsel for petitioner has challenged the order of framing of
\ncharge against the
\npetitioner by taking diametrically opposite stand viz on the one hand, the
\nlearned counsel submits
\nthat the petitioner at the relevant time was an employee of an un-aided school
\nand was not as such a
\npublic servant. In the submission of learned counsel for petitioner, the
\nprovisions of Act of 2006
\nand Act 1987 could not  be invoked against him as he being not a public servant.
\nOn the other hand,
\nthe learned counsel submits  that no cognizance  could be taken in respect of
\noffence alleged to
\nhave been committed by the  accuse petitioner as no sanction has been obtained
\nfrom the competent
\nauthority before launching  of prosecution against the petitioner. The
\nsubmission though mutually
\ndestructive of each other, however, fall to ground lock, stock and barrel  for
\nthe following reasons
\nand on the following legal grounds.\n<\/p>\n
        Section 10<\/a> of the Act 1987 mandates that every person in the engagement of
\nconducting of
\nexamination shall be deemed to be public servant, within the meaning of Section
\n21 of RPC. The
\nexpression “every person” used in this section makes it writ large on the face
\nof the statute and in
\norder to place proper interpretation and construction to make it in tune with
\nthe purpose sought to
\nbe achieved by enacting Act of 1987, it can be well said that even a private
\nperson  who is not
\nconnected in any manner whatsoever in the affairs of the State,  even a person
\nwho is working in  a
\nprivate un-aided institution when engaged  in the conduct of examination, by the
\napplication of
\nSection 10<\/a> of  Act 1987 automatically becomes public servant within the meaning
\nof Section 21
\nRPC.  Section 10<\/a> of the Act 1987 becomes an added clause of section 21 RPC.\n<\/p>\n
         The petitioner in view of the fact  that he was engaged to conduct the
\nexamination is
\ndeemed to be public servant within meaning of Sec. 21 of RPC.\n<\/p>\n
        Section 2<\/a> of Act 2006, provides, that, for the purpose of said Act,
\n“Public servant” means a
\npublic servant as defined in section 21 of RPC.\n<\/p>\n
        The petitioner in view of this lucid and explicit statement of the
\nlegislature made in section
\n2<\/a> of Act of 2006 is a public servant  for the purpose of Act 2006 as well, as
\nbecause, section 10<\/a> of
\nAct 1987 deems petitioner to be a public servant within the meaning of Section
\n21 of RPC.\n<\/p>\n
        A conjoint reading of above said provisions admit of no doubt or ambiguity
\nabout
\npetitioner’s being public servant both for the purpose of Act 1987 and Act 2006.\n<\/p>\n
        Now turning to next ground of challenge, which has been projected about
\nfailure of
\nprosecution  to obtain sanction for launching prosecution against the
\npetitioner. The very fact that
\nthe engagement\/appointment of petitioner as Inspector\/member of Supervisory
\nstaff for conducting
\nexamination in centre 862 located at Woodland High school, Sonawar Srinagar, by
\nthe very nature
\nof the duty to be performed was only for the period for which the examination
\nwas to be conducted.\n<\/p>\n
The nature of his very engagement was coterminous with the completion of
\nexamination itself. By
\nnature of the very engagement  the petitioner  ceased to be a public servant
\nwhen the examination
\nwas over.\n<\/p>\n
        Section 6<\/a> of the act of 2006 provides, that no court shall take cognizance
\nof an offence
\npunishable u\/s 161, or section 164<\/a> , Section 165<\/a> or 167-A or sub section (3) of
\nsection 5<\/a> of the act
\n2006, alleged to have been committed. The relevant part of section 6<\/a> is
\nreproduced as under:-\n<\/p>\n
“No court shall take cognizance of an offence punishable under section 161<\/a>
\nor section 164<\/a> or section 165<\/a> or section 167-A of the State Ranbir Penal
\nCode, Samvat 1989 or under sub-section (2) or sub-section (3) of section 5<\/a> of
\nthis Act, alleged to have been committed by a public servant except with the
\nprevious sanction:-\n<\/p>\n
(a)     in the case of a person who is employed in connection with the affairs of
\nthe
\nState and is not removable from his office save by or with the sanction of
\nthe Government;\n<\/p>\n
(b)     in the case of any other person, of the authority competent to remove him
\nfrom his office.”\n<\/p>\n
        The plain language of section 6<\/a> of Act 2006 mandates that court cannot
\ntake cognizance of
\nthe offence unless previous sanction as required is issued by the competent
\nauthority. Section 6<\/a> of
\nthe Act 2006  has no relevance for conducting of investigation and  only
\nprohibits  the court  of
\ncompetent jurisdiction to take cognizance  of offence unless there is previous
\nsanction  issued by
\ncompetent authority necessary for the prosecution of the accused. At the time
\nwhen the challan was
\nfiled against the petitioner admittedly, he had ceased to be a public servant,
\nand no previous
\nsanction necessary for prosecution was required to be  obtained.\n<\/p>\n
        The Honb’ble Supreme Court  in case titled state of Kerala (appellant) v
\nPadmanabhan Nair
\n(Respondent) reported in (1999) 5 SCC 690 has held that the accused facing
\nprosecution for
\noffence under PC Act<\/a> cannot claim any immunity  on the ground  for want of
\nsanction, if he ceased
\nto be a public servant, on the date when the court took said cognizance. Para 6
\nis reproduced as
\nunder:-\n<\/p>\n
“Para 6. The correct legal position, therefore, is that an accused facing
\nprosecution for offences under the PC Act<\/a> cannot claim any immunity on the
\nground of want of sanction, if he ceased to be a public servant on the date
\nwhen the court took cognizance of the said offences.  So the High Court was
\nat any rate wrong in quashing the prosecution proceedings insofar as they
\nrelated to offences under the PC Act<\/a>. ”\n<\/p>\n
        The Hon’ble Supreme Court  again in case  state of J&K appellant   v.
\nCharan Dass Puri
\n(Respondent).\n<\/p>\n
reported in (1999) 5 SCC 738 relying on the earlier judgment of the Suprme court
\nheld that when
\nthe trial court is required to take cognizance  of the offence and  if the
\naccused is ceased to be
\npublic servant, no previous sanction is necessary in such situation. Para 4 of
\njudgment is
\nreproduced as under:-\n<\/p>\n
“Para 4.  This Court in Kalicharan Mahapatra v. State of Orissa<\/a> has held that if
\na
\npublic servant has ceased to be public servant at the time the court is called
\nupon to
\ntake cognizance of the offence, no previous sanction is necessary.  This Court
\nalso
\nreferred to its previous decision in R. Balakrishna Pillai v. State of Kerala<\/a> on
\nwhich
\nreliance has been placed by the High Court for taking the contrary view and has
\npointed out how that judgment can be of no relevance where the offence alleged
\nis
\nan offence punishable under the Prevention of Corruption Act<\/a>, 1947.  In para 13
\nof
\nthe judgment this Court has specifically dealt with this aspect.  Thus, the law
\non this
\npoint is quite clear that in case of a public servant who is alleged to have
\ncommitted
\nan offence punishable under the Prevention of Corruption Act<\/a>, no previous
\nsanction
\nwould be required if by the time the court is called upon to take cognizance of
\nthat
\noffence he has ceased to be public servant.  The High Court was wrong in taking
\nthe
\ncontrary view.  This appeal is, therefore, allowed, judgment and order passed by
\nthe
\nHigh Court are set aside and the trial court is directed to proceed further with
\nthe
\ntrial of the case.”\n<\/p>\n
        Another ground projected by learned counsel for petitioner is  that
\nSpecial Judge Anti-\n<\/p>\n
corruption Srinagar  was not competent to take cognizance  of the offence u\/s
\n3\/5 of  the Act of
\n1987, which cognizance of the offence could be taken only on a complaint filed
\nby the authority
\nmentioned in the Act of 1987. It was further submitted that under the Act 1987
\nthe procedure
\nprovided  for conducting trial is section 259<\/a> (a) Code of Criminal Procedure. To
\nanswer this
\nsubmission reference is required to be made to the J&K Criminal Law amendment
\nAct  1958, in
\nbrief Act of 1958.\n<\/p>\n
        Section 6<\/a> of the Act of 1958 provides, that Government may, by
\nnotification in the
\nGovernment Gazette, appoint as many Special Judges as may be necessary for such
\narea or areas as
\nmay be specified  in the notification to try the offences punishable under
\nsections 161<\/a>, 165<\/a> or 165-\n<\/p>\n
A of the Ranbir Penal Code, of sub section (2) of section 5<\/a> of the Prevention of
\nCorruption Act,
\n2006. Section 7<\/a> of the Act of 1958 is reproduced as under:-
\n“Section 7<\/a> (3) Cases triable by Special Judge
\n(1)..\n<\/p>\n
(2)..\n<\/p>\n
(3) When trying any case a Special Judge may also try and offence  other
\nthan an offence  specified in section 6<\/a> with which the accused  may, under
\nthe Code<\/a> of Criminal Procedure, 1989, be charged at the same trial.
\nSub section (3) of section 7<\/a> clothes  Special Judge  with powers to try any
\noffence  other than an
\noffence specified in section 6<\/a> with which  the accused may, under the Code<\/a> of
\nCriminal Procedure,
\n1989, be charged at the same trial. The special Judge  Anti Corruption thus gets
\njurisdiction to try
\nthe accused  for commission of offence under Act of 1987 as well. The said
\npurposive
\ninterpretation requires to be placed on the said provisions as the laws are
\nenacted and institutions
\ncreated  for the benefit of society as a whole. The ground of challenge so made
\nabout the conduct of
\ntrial by special judge of offence u\/s 3\/5 of Act 1987 also fails. The xerox copy
\nof record further
\nreveals that at the request of Vigilance Organisation, J&K State Board of School
\nEducation has also
\nmade a complaint under section 3<\/a>\/5<\/a>  of the Act 1987, which is part of the record
\nbefore trial court,
\nand accordingly the trial court has took cognizance of the said offence as well.
\nThe trial court under
\nthese circumstances has legally and validly framed the charge against the
\naccused for commission
\nof offence u\/s 5(2)  of Prevention of Corruption Act<\/a> read with section 3\/5
\nPrevention of Unfair
\nmeans Act 1987.\n<\/p>\n
        The learned counsel for petitioner has referred to judgment of the Supreme
\ncourt titled State
\nof Gujrat appellant v. I. Manshankar Prabhsha Nair Dwivi, reported in 1973 SC
\n330,  to support
\nhis contention that the petitioner though charged with the  duty of supervising
\nexamination cannot
\nbe said to be Public Servant. The facts of the said case are materially
\ndifferent from this case in as
\nmuch as a senior lecturer  of Government College was appointed as an examiner
\nto conduct
\nPhysics practical examination which was to be held by Gujrat University. The
\nHon’ble Supreme
\nCourt after considering the matter held that  the said accused  was not public
\nservant within
\ndefinition of 21 of  Indian Penal Code<\/a>. In the said case, there was no law
\nprojected or shown that
\nby a Special statute  the person engaged for conducting of examination was to be
\ndeemed to be a
\npublic servant.\n<\/p>\n
        The said judgment in the facts of the present case does not support the
\ncontention of the
\npetitioner. The petitioner has further relied upon judgment titled State of
\nOrrisa appellant v.\n<\/p>\n
Birakishore Naik  respondent  reported in AIR 1964 Orrisa  202. In the said case
\nson of  Extra
\nDepartmental Agent of  Post office looked after  father’s official duty without
\nany recognition or
\nappointment by postal department. It was held that he had no right to hold the
\npost and, therefore,
\ncould not be said to be public servant. The said judgment turns on its own facts
\nwhich are
\nmaterially different  from facts of the case in hand. As in this case  on the
\norders of the competent
\nauthority services of petitioner were engaged for conducting of examination and
\nin terms of section
\n10<\/a> of  the Act 1987,  as already held that the petitioner is deemed to be public
\nservant.\n<\/p>\n
        On the grounds and for reasons stated above in order to secure the ends of
\njustice it is lawful
\nthat trial court shall  proceed against the accused in accordance with law. The
\nCriminal Justice
\nsystem  in order to be reinvigorated demands expeditious disposal of the
\ncriminal cases. The
\nexpeditious disposal of the criminal cases has been held to be a fundamental
\nright  guaranteed
\nunder article 21<\/a> of the Constitution. It is in public interests also  to decide
\nthe cases more
\nparticularly criminal cases at the earliest.  Accused if found guilty at the end
\nof the trial  shall be
\npunished properly, and if found innocent shall be declared so at earliest. This
\nis in over all interests
\nof society.\n<\/p>\n
        In the upshot of what has been discussed above, this petition under
\nsection 561-A<\/a> fails and
\nis dismissed. The order framing charge against petitioner in held to be legal.
\nThe trial court is
\ndirected to proceed with the case in accordance with law.\n<\/p>\n
(Muzaffar Hussain Attar)
\n                                         Judge
\nSrinagar
\n 22.12.08
\nAyaz <\/p>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court Organization vs Before Dealing With The … 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-252634","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nOrganization vs Before Dealing With The ... - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/organization-vs-before-dealing-with-the\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Organization vs Before Dealing With The ... - 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