BHOMESH SHARMA Vs. STATE OF J AND K

JUDGEMENT

(1.) THE criminal justice system aims to ensure social harmony through law and its enforcement. Its object is to control crime. Three institutions, namely, Police, Judiciary and Prisons, are the chief components of the system. The role of police, which investigates the offences, being foundational is most crucial for achieving the goal. The success of the system principally depends upon the quality of the investigation conducted by the police. The quality investigation contemplates reaching out to the real perpetrator(s) of the crime and gathering such trustworthy, dependable and relevant evidence, on the basis of which it can be established in a competent Court of Law beyond any reasonable shadow of doubt that such criminal(s) alone has/have committed the crime. This can be achieved by honest, objective, impartial and fair investigation. When the investigating agency fails either to reach out to the actual perpetrator of the crime or to gather best evidence, then justice becomes the casualty. And in a case where Investigating Officer collects the best evidence in a criminal investigation and then for any reason whatsoever allows the same to be lost or destroyed, then criminal justice system itself goes into disrepute. Unfortunately, this thing has happened in respect of investigation being conducted by the Vigilance Organization, a prime investigating agency of the State, into FIR No. 20/2005.

(2.) FIR No. 20/2005 was registered by Police Station Vigilance Organization on 6.12.2005 against accused Bhomesh Sharma (Petitioner herein) son of Sh. Brij Mohan Sharma, resident of Pacci Dhaki, Jammu, at present Sector No. 5 Trikuta Nagar (Extension), Jammu, Regional Transport Officer, Kathua, headquarter at Lakhanpur, on the allegation that he by indulging in corrupt practices and benami transactions has amassed huge wealth, far beyond his known sources of income, and that secret inquiries conducted revealed that the accused has raised the assets mentioned in the FIR. After registration of FIR, the investigation was commenced. The Investigating Officer on 6.12.2005 obtained search warrants from the Special Judge Anti Corruption, Jammu, one of those being for raiding the house of Bhomesh Sharma, the accused, at Sector No. 5, Trikuta Nagar (Extension), Jammu for searching for allied records/related documents essential to the investigation. It appears that the Investigating Officer when found that at the said house Sh. Brij Mohan Sharma, father of accused and Shiv Kumar Sharma and Rajesh Kumar Sharma, brothers of accused along with the accused were living, he obtained an order dated 7.12.2005 from Sr. Superintendent of Police, Vigilance Organization for authorizing him in terms of Section 165(3) of Criminal Procedure Code to search that house for tracing out the documents pertaining to disproportionate assets raised by accused Bhomesh Sharma. Accordingly, the Investigating Officer conducted raid on the said house and searched the same. During search the items found in the house were inventorized, which included about 78 documents and 35 rubber stamps. Out of the 35 rubber stamps, five stamps were of the following description:

(3.) ON 12.2.2006 the Sr. Superintendent of Police, Vigilance Organization, Jammu filed an application before the learned Special Judge Anti Corruption, Jammu, stating therein as follows: I may bring it to the notice of Hon'ble Court that I was away from my office with effect from February 05, 2006 to February 09, 2006 to undergo a training course held at CBI Academy Ghaziabad (UP). On February 08, 2006, I learnt from Shri Amanat Ali Shah, Dy. SP (PRK) Vigilance Organization, Jammu that Insp. Nissar Hussain Shah No. 49/SVO approached him at his residence on 8th February 2006 in the evening and disclosed that some important record and rubber stamps seized during the house search of the accused Bhumesh Sharma and others on 07/08 -12 -2005 in case FIR No. 20/2005 Under Section 5(1) (e) read with Section 5(2) P. C. Act Svt. 2006 registered with Police Station Vigilance Organization, Jammu were missing. On my arrival at Jammu, I called Insp. Nissar Hussain Shah No. 49/SVO (Investigating Officer) to my office on February 10, 2006 and enquired about the details of missing record and rubber stamps. The I.O. concerned disclosed that during the scrutiny of record he found the following record and rubber stamps missing: