Ashok Kumar v. Central Bureau of Investigation
Snapshot
Ashok Kumar, a 53-year-old government employee, and Jaisuriya Sharma, a 27-year-old unemployed individual, residents of Pallanwalla, Jammu, had been arrested and were currently lodged in District Jail Amphalla, Jammu. They had filed a bail application under Section 439 of the Code of Criminal Procedure (CrPC) in response to a case registered against them by the Central Bureau of Investigation (CBI), Anti-Corruption Branch Jammu, for offenses punishable under Sections 201, 408, 411, and 420 of the Indian Penal Code (IPC). The case arose from an FIR (No. RC0042022A0008) registered at the Police Station CBI, ACB, Panama Chowk Rail Head Jammu.
The petitioners contended that there was no evidence against them regarding their involvement in the conspiracy related to the leakage of question papers for the recruitment of Police Sub-Inspectors. They argued that they were innocent and had not committed any offenses. Petitioner No. 1, Ashok Kumar, was a chronic heart patient and a government employee, while petitioner No. 2, Jaisuriya Sharma, was unemployed.
The respondent, the Central Bureau of Investigation (CBI), opposed the bail application, stating that it lacked merit. They argued that the accused had played a key role in a criminal conspiracy involving the sale of leaked question papers to candidates for money. The respondent further stated that the accused had already destroyed evidence and that there was a likelihood of them committing similar offenses if released on bail. The investigation had revealed a larger conspiracy involving multiple states and accused persons, and the release of the petitioners would hinder the progress of the case.
Questions of Law in this case
- Whether there is prima facie evidence to establish the involvement of the petitioners in the criminal conspiracy related to the leakage of question papers?
- Whether the severity of the offenses and the potential for repetition of such crimes warrant the denial of bail?
- Whether the health condition of petitioner No. 1, Ashok Kumar, should be considered as a ground for granting bail?
Decision
After careful consideration of the arguments and examination of the material aspects of the case, Hon’ble Mr. Justice Mohan Lal delivered the order. The court concluded that there was prima facie evidence to support the involvement of the petitioners in the criminal conspiracy. The severity of the offenses, the potential for repetition, and the larger public interest implicated in the case weighed against granting bail.
The court emphasized the importance of maintaining public confidence in the system and protecting the interests of deserving and meritorious candidates affected by the recruitment scam. It also noted the influence petitioner No. 1, being a police official, could exert on witnesses and the potential for tampering with evidence.
Based on these considerations, the bail application was dismissed, and the petitioners were denied bail. The court deemed it necessary to afford the investigating agency sufficient time to complete the investigation and unearth the full extent of the conspiracy.
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Harbachan Singh v. Sr. Superintendent of Police Srinagar and others
Snapshot
Harbachan Singh, the petitioner/appellant, challenged an order passed by the Magistrate and the consequential First Information Report (FIR) filed against him and others. The complainant, identified as respondent 3, alleged that Harbachan Singh had approached him in 2017, offering investment opportunities in three construction companies. The complainant claimed that he invested a significant amount of money, but the accused failed to provide any returns. Moreover, the complainant alleged that the accused resorted to threats, attempted to harm him and his family, and even extorted a substantial sum of money from him. The complainant sought action against the accused, but his initial complaints were not acted upon, leading him to file an application under Section 156(3) of the Criminal Procedure Code (CrPC).
Questions of Law
The key question raised in the petitions was whether the Magistrate’s order and the subsequent registration of the FIR were valid. The petitioner’s counsel argued that the Magistrate failed to consider the abnormal delay in reporting the alleged offenses and did not order a preliminary inquiry as required by the Supreme Court’s ruling in Lalita Kumari v. Government of UP. The petitioner contended that the Magistrate had not applied their mind properly and had approached the case in a mechanical manner.
Decision
After considering the arguments and analyzing the facts, the High Court concluded that the Magistrate had erred in not ordering a preliminary inquiry due to the abnormal delay in reporting the alleged offenses. The Court referred to the Supreme Court’s judgment in Lalita Kumari and Priyanka Srivastava v. State of U.P., emphasizing the need for preliminary inquiries in cases involving delay/laches in initiating criminal prosecution. The Court found that the Magistrate had overlooked these principles and had not given due consideration to the circumstances of the case.
Accordingly, the High Court quashed the impugned order and the FIR, remanding the matter back to the Magistrate for revisiting and reconsidering the complainant’s application under Section 156(3) of the CrPC against the accused persons. The Court clarified that its decision did not express any opinion on the veracity of the allegations. The judgment was deemed reportable.
Viewfinder
High Court of Jammu & Kashmir and Ladakh addressed allegations of fraud and threats in a construction investment scheme. Harbachan Singh, the petitioner, had approached the complainant in 2017, promising lucrative returns on investments in three construction companies. However, the complainant claimed that he had not received any profits and that the accused had even extorted a significant amount of money from him. The complainant further alleged threats and attempted harm by the accused and sought action against them.
Despite the complainant’s initial attempts to seek redress, no action was taken, prompting him to file an application under Section 156(3) of the CrPC. The Magistrate, however, ordered the registration of an FIR without considering the abnormal delay in reporting the offenses. The High Court, upon reviewing the case, determined that the Magistrate had erred in not ordering a preliminary inquiry as required by the Supreme Court’s precedents in Lalita Kumari and Priyanka Srivastava. Therefore, the High Court quashed the impugned order and the FIR, directing the Magistrate to revisit the application and reconsider it accordingly.
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Muntazir Ahmad Bhat v. Union Territory of JK & Anr.
Snapshot
Muntazir Ahmad Bhat, the appellant, had filed a writ petition challenging his detention under Section 8 of the J&K Public Safety Act. The appellant had been previously booked under multiple FIRs and granted bail on various occasions. However, while in custody for a different case, he was served a detention order, which he contested through the writ petition.
Questions of Law in the case
1. Whether the detention order was justified when the appellant was already in custody for another case?
2. Whether the detention order was validly executed in accordance with the Code of Criminal Procedure (CrPC)?
3. Whether the detenu was provided with the opportunity to make a representation against the detention?
4. Whether the allegations in the detention order were based on credible evidence?
Decision
The Hon’ble Chief Justice N. Kotiswar Singh and Mr. Justice Puneet Gupta, after considering the arguments and examining the records, upheld the decision of the learned Single Judge and dismissed the appeal. The court’s decision was based on the following findings:
1. The detention order was valid, even though the appellant was already in custody for other cases. The detaining authority had the subjective satisfaction that the appellant’s release on bail would likely lead to his engagement in prejudicial activities.
2. The execution of the detention order by a Sub-Inspector, instead of the District Magistrate, did not affect the validity of the order. The detention under the Public Safety Act does not amount to arrest for a specific offense, and therefore, the provisions of Section 76 of CrPC, which relate to the production of an arrested person before a Magistrate, did not apply.
3. The appellant was provided with the opportunity to make a representation against the detention, as evidenced by the notice issued to him under Section 13 of the J&K Public Safety Act.
4. The allegations made in the detention order were based on credible evidence, including the appellant’s past activities and involvements in serious offenses mentioned in the FIRs.
The court found no irregularities in the decision of the learned Single Judge and, therefore, dismissed the appeal.
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Ghulam Ahmad Mir vs. J&K Bank Ltd.
Snapshot
Ghulam Ahmad Mir, the petitioner, had obtained a composite loan facility of Rs. 9,24,35,000 from J&K Bank Ltd. The loan was secured against hypothecation of furniture and collateral security of a mortgaged property. Unfortunately, the loan facility was classified as a Non-performing Asset (NPA) on December 31, 2019. A notice under Section 13(2) of the SARFAESI Act was issued against the petitioner, stating an outstanding amount of Rs. 7,86,88,082.94 as of June 30, 2021.
The petitioner attempted to negotiate and settle the financial claim with the bank under the Reserve Bank of India’s scheme. Initially, the petitioner offered Rs. 4.90 crores for a one-time settlement, which was later increased to Rs. 6.80 crores. However, instead of accepting the offer, the bank launched proceedings under the SARFAESI Act. Meanwhile, the bank introduced a revised Onetime Settlement policy called J&K Bank’s Special Onetime Settlement Scheme for NPAs, 2022 (JKB Special OTS, 2022). Under this scheme, the petitioner’s case was deemed ineligible due to the ongoing compromise process and a higher offer amount compared to the OTS amount prescribed by the scheme.
Questions of Law
The petitioner challenged the exclusion clause of the JKB Special OTS, 2022, on the grounds that it was arbitrary and violated the guidelines issued by the Reserve Bank of India. The petitioner contended that the exclusion clause discriminated against honest borrowers and was against public policy.
Decision
After considering the arguments from both sides, the Hon’ble Mr. Justice Sanjay Dhar, Judge of the High Court, examined the provisions of the JKB Special OTS, 2022. The court concluded that the scheme was non-discretionary and non-discriminatory. It also held that the exclusion clause, which excluded cases where the chances of recovery were higher, was not discriminatory.
The court further emphasized that financial institutions have the right to formulate schemes and guidelines to differentiate between cases with higher and lower chances of recovery. It noted that the bank’s decision to exclude the petitioner’s case from the OTS Scheme was a prudent one, considering the higher amount offered and the bank’s aim to recover the outstanding dues.
The court dismissed the petition, stating that the petitioner had not demonstrated any illegality or perversity in the bank’s decision.
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Hem Raj v. Union of India and Others
Snapshot
Hem Raj, the petitioner, had been working as a Constable in the Border Security Force (BSF) since his appointment on August 1, 1999. However, he overstayed his sanctioned leave due to the illness and subsequent death of his parents. The petitioner sought permission to resume his duties, but the respondents declined and initiated disciplinary proceedings against him.
Questions of Law in this Case
The petitioner approached the High Court seeking several reliefs, including the quashing of the dismissal order, reinstatement to his previous post, and the declaration of the impugned order and departmental proceedings as unconstitutional and contrary to the provisions of the BSF Act and Rules. The main questions of law in this case revolved around:
1. Whether the respondents followed the proper procedure and natural justice principles in initiating disciplinary action and dismissing the petitioner?
2. Whether the impugned order and departmental proceedings are in violation of the BSF Act and Rules?
3. Whether the petitioner is entitled to reinstatement and other consequential benefits?
Decision
After considering the arguments put forth by the petitioner’s counsel, Mrs. Surinder Kour, and the respondents’ counsel, Mr. Vishal Sharma, the Hon’ble Justice Javed Iqbal Wani delivered the following decision on May 4, 2023:
1. The impugned Order No. Estt/161Bn/Dis/HK/99/1/3362-561 dated 23.10.1999, which resulted in the dismissal of the petitioner, is quashed.
2. The respondents are directed to reinstate the petitioner in service within six weeks from the date of the judgment.
3. The respondents have the option to conduct an enquiry against the petitioner regarding the overstaying of leave, following due process and in accordance with the law.
This decision signifies a victory for Hem Raj, who fought against the dismissal from his position and secured the opportunity to be reinstated in his former role. The judgment emphasizes the importance of following proper procedure and natural justice principles in disciplinary proceedings, ensuring fairness and protecting the rights of individuals.
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Shamim Ahmed vs. UT of JK and Ors.
Snapshot
Shamim Ahmed, a dedicated constable in the Jammu and Kashmir Armed Police, found himself entangled in a web of injustice. After falling ill and seeking medical treatment, Shamim resumed his duties, only to discover that a departmental enquiry had been initiated against him without any charge sheet or opportunity to be heard. Despite a recommendation from the enquiry officer to treat his absence as “Dies Non,” Shamim was issued a show cause notice and subsequently discharged from service on the grounds of being an inefficient and unsatisfactory police officer. This discharge order was challenged in court through a writ petition.
Questions of Law in this Case
The key questions of law revolved around the validity of the discharge order and the violation of principles of natural justice. The petitioner argued that the order was stigmatic in nature, attaching a stigma to his career and hindering future employment opportunities. Additionally, the petitioner contended that the order was punitive and should have been preceded by a detailed departmental enquiry and an opportunity to be heard.
Decision
After careful consideration of the arguments presented, the court came to a decisive conclusion. It held that the discharge order, issued under Rule 187 of the Jammu and Kashmir Police Manual, was inapplicable to the petitioner’s case as the rule could only be invoked within three years of enrollment. Moreover, the order was stigmatic and punitive in nature, violating the petitioner’s rights protected under Article 311(2) of the Constitution of India.
The court also noted that the order of discharge had been previously quashed by the same court in an earlier round of litigation, with directions given to the respondents to either conduct a regular enquiry or pass an order under Rule 187. However, the respondents failed to conduct a proper enquiry and instead invoked the same rule without due process.
Based on these findings, the court set aside the impugned order and quashed the discharge order. The respondents were directed to reinstate the petitioner with immediate effect, along with all consequential benefits. The petitioner was entitled to these benefits retrospectively from the date of joining his services.
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