AUSIA GUL Vs. STATE AND ORS.

JUDGEMENT

(1.) The petitioner after passing her Higher Secondary (10+2) examination succeeded in getting admission to MBBS Course, Session 1993 in Government Medical College, Srinagar under "Other Social Caste" category on the strength of other Social Caste (OSC) Certificate issued in her favour by Shri Ghulam Hyder Mir the then Tehsildar, Pulwama on the recommendation of Shri Siraj-Uddin Shah Naib Tehsildar of the area. Shri Ghulam Hassan Resident of Rawalpora, Srinagar on 12.10.1994 lodged a written complaint with the Commissioner, Jammu and Kashmir Vigilance Organisation alleging therein that Ms. Ausia Gul was not a member of other Social Caste category and had fraudulently in connivance with Tehsildar and Naib Tehsildar, Pulwama obtained other Social Caste (OSC) certificate and managed to get admission in MBBS Course by pressing into service certificate so obtained.

(2.) Learned Special Judge Anti Corruption on going through the Charge-sheet and upon hearing the Chief Prosecuting Officer, and the accused and their counsel found sufficient grounds to reveal commission of offence under Section 5(1) (d) read with Section 5(2) Prevention of Corruption Act, and Section 120-b RPC by the petitioner and her alleged co-conspirators and formally charged them of the aforesaid offence.

(3.) The petitioner seeks quashment of the order dated 18th May 2009 in exercise of inherent powers under Section 561-A Cr.P.C. primarily on the ground that as the Deputy Commissioner, Pulwama on inquiry pursuant to order dated 07.04.1997 in OWP No. 310/1994 up held the Other Social Caste (OSC) certificate issued by Tehsildar, Pulwama (Ghulam Hyder Mir) in favour of Ausia Gul, there was no reason for leaned Special Judge Anti-Corruption Srinagar, Kashmir to hold the petitioner and other accused to have prima-facie committed offences punishable under Section 5(2) Prevention of Corruption Act, Svt. 2006 Read with 120-B RFC and commence the trial. The trial Court is said to have erroneously assumed that the views of Divisional Commissioner were not available to the High Court while disposing of, the writ petition filed by the petitioner. It is pointed out that the Divisional Commissioner, Kashmir himself filed an application in SWP No. 310/1994 detailing his opinion that the Tehsildar Pulwama had wrongly granted certificate in favour of petitioner and that the conclusion arrived at by the Deputy Commissioner Pulwama up-holding OSC certificate were not to be accepted. It is urged that the writ court had before it the application filed by Divisional Commissioner Kashmir dated 13th September 1997 insisting that the conclusions drawn by the Deputy Commissioner were erroneous disposed of, the writ petition holding that the petitioner was entitled to continue her studies. It is insisted that against the above backdrop the criminal proceedings against the petitioner amounted to abuse of process of the Court and were liable to be quashed.