MEHBOOB IQBAL Vs. STATE OF JK & ORS

JUDGEMENT

(1.) These petitions, which raise common and akin questions of facts and the law, have been clubbed together and shall be determined conjointly.

(2.) Criminal Revision No. 17/2018 is directed against the order dated 31st of March, 2018, passed by the Court of learned 1st Additional District Judge, Special Judge, Anti-Corruption for the Districts of Baramulla, Kupwara and Bandipora.

(3.) The string of incidents, as these emerge from the study of the petition under consideration are that the petitioner, along with other persons (Pro forma respondents), has been maliciously implicated in an FIR bearing no.08/2009 by the Vigilance Organization (Respondent no.2) and after the culmination of the investigation of the case in the said FIR, a report in terms of Section 173(2) of the Cr. P.C. was laid in the Court of learned Special Judge, Anti-Corruption, Srinagar on 25th of September, 2012. However, the said matter was transferred to the Court of learned Special Judge, Anti-Corruption, Baramulla on 9th of November, 2013, upon re-organization and setting up of new Anti-Corruption Courts, in all the Districts of the Kashmir provision. After a considerable delay, the respondents opened their case. During the proceedings, the attention of the learned trial Court, was drawn towards the order dated 10th of April, 2009, passed by this Court, in a petition bearing No. 34/09, filed under Section 561-A of the Code of Criminal Procedure Code, titled 'Abdul Hamid Dar & Ors Vs State & Ors', wherein, this Court had categorically and unequivocally held that the respondent, must before holding the petitioners liable for any criminal act, make an endeavour to find an answer to the question whether the J & K Lands (Vesting of Ownership Rights to the Occupants) Act, 2001 (hereinafter referred to as "the Act") applies to the area and the land in question. The learned trial Court, on perusing and considering the direction of this Court, in terms of a well-reasoned order dated 25th of June, 2016, directed the SHO, Police Station, Vigilance Organization, Kashmir, to inform the Court by or before the next date of hearing whether, or not, any decision has been taken by the Government on that count, after the Chief Secretary, had, way back in the month of July, 2009, directed the Department of Revenue to put the process on hold till the whole matter was reviewed from the legal angle. The respondent No.2, had, accordingly, approached the Department of Law, Justice and Parliamentary Affairs, with a copy of the order dated 25th of June, 2016, passed by the learned trial Court and had sought sanction to file a petition under Section 561-A, Cr. P.C. However, the department observed that the Court has simply sought information regarding the decision taken by the Chief Secretary and that the same does not amount to an abuse of the process of the law and, accordingly, forwarded the opinion of the then Advocate General to the law Department, with a direction to apprise the Court of the same. However, the Prosecution, in order to mislead the learned trial Court, concealed the opinion with respect to the applicability of the Act to the Gulmarg Development Authority and, instead, only placed the covering letter on record before the learned trial Court. The counsel for the accused No.1/ petitioner herein, on perusing the compliance report, noticed the mischief of the respondent No. 2, and, accordingly, filed an application under Section 94 of the Cr. P.C, beseeching the learned trial Court, to summon the documents, i.e. the opinion of the learned Advocate General and the Law Department as furnished by the Respondent Nos. 2 & 3, for the purpose of placing the same before the Court in compliance of the order dated 25th of June, 2016. The learned trial Court, vide order dated 24th of February, 2018, listed the application for arguments on 17th of March, 2018. It was, accordingly, taken up and argued at length on the designated dated, i.e. 17th of March, 2018, by both the parties. On the conclusion of the arguments, the learned trial Court directed that the matter be listed on 31st of March, 2018, for the pronouncement of the order on the said application. On 31st of March, 2018, when the matter was taken up, the learned trial Court, did not pronounce any order on the application and, instead, ordered the next date of hearing in the matter as 7th of April, 2018, for arguments on charge. The learned counsel impressed upon the learned trial Court about the appropriateness/ necessity of the order on the application, as it would clarify the question for determination as framed by this Court in its order dated 10th of April, 2009 and by the learned trial Court vide order dated 25th of June, 2016, in accordance with its order dated 17th of March, 2018. The learned trial Court, despite the above stated facts, refused to pass an order on the said application and directed the matter to be listed for arguments on charge in complete deviation of the procedure. Aggrieved thereby, the petitioner filed a petition, bearing OWP No. 563/2018, titled as 'Mehboob Iqbal Vs State & Ors', under Section 104 of the Constitution of J & K, which came up for hearing before the High Court on 5th of April, 2018, and on the said date this Court called for the record of the trial Court. On the next date before the trial Court, i.e. 7th of April, 2018, the petitioner along with his counsel appeared before the learned trial Court and, on the basis of the order of this Court passed in the petition under Section 104, No proceedings were taken in the matter. The counsel for the petitioner/ accused No.1, however, on the same day made a verbal request for the inspection of the trial Court record (as the same was still available with the learned trial Court), which was allowed, and, on the inspection of the said record, no orders pertaining to the daily proceedings dated 17th of March, 2018 or 31st of March, 2018, were found on the file, but, on the 9th of April, 2018, one of the counsel was provided a copy of an order antedated as 31st of March, 2018, whereby, the learned trial Court had rejected the said application under Section 94 filed by the petitioner. It is this order dated 31st of March, 2018 that is the subject matter of challenge in this petition.