SHANTI DEVI Vs. STATE OF J&K

JUDGEMENT

(1.) By this common judgment, petition filed under Sec. 561A Cr. P.C. (CR.M.C. No.248/2010 and two Revision petitions bearing Nos. 63/2010 and D-21/2011 are being disposed of as all these petitions are directed against the same order dtd. 16/7/2010 passed by Special Judge Anti-Corruption, Jammu.

(2.) In CRR 63/2010, petitioner SHANTI DEVI seeks quashing of order dtd. 16/7/2010 and the charge sheet framed vide dtd. 6/8/2010. Being aggrieved by the impugned order dtd. 16/7/2010, petitioner-Shanti Devi challenges the same on the grounds; that the learned Trial court has not felt necessary to formulate the questions of legal import and the important facts out of the prosecution evidence u/s 161 Cr.P.C. There is no evidence on record that the accused officials in abuse of their official positions conferred undue pecuniary advantage to themselves and to the petitioner and corresponding loss to the state exchequer; that the petitioner has served the Deptt. For about seven years and her attendance was recorded continuously in the sub centre Ratnal till 11/11/2003; that the prosecution has failed to know the whereabouts of the alleged Shanti devi W/o Chuha Ram. In the case of the petitioner, there is no other Shanti Devi who has ever worked on the post. The court below has not considered that whether the accused petitioner was inserted fraudulently and in furtherance of the criminal conspiracy. And whether the alleged Shanti Devi w/o Chua Ram was alive at the time of issuance of order of recommendation by CMO and further when the order of appointment of the petitioner was issued by the then Director Health Services Jammu; that the court below has also not considered the fact whether Dr. B.B. Sharma BMO Bishnah allowed the petitioner to join at Sub-centre Ratnal (Bishnah) vide his order No.153 dtd. 26/5/1997 and orders No.136 San 137 dtd. 21/5/1997 without verifying the facts that ETS of similar name but different parentage was already working in Sub-centre Ratnal; that the court below has similarly not considered the fact that the list referred by CMO vide his No. E-1/86 dtd. 17/4/1997 to the DHS does not contain the husband's name or parentage of the petitioner; that the Learned Judge has given the effect of this fact only to the three official involved in the case and has ignored the innocent poor petitioner Safaiwala; that the investigating officer has opted not to seize the original list and the record pertaining to the engagement and service of the alleged Shanti Devi W/o Chuha Ram. Besides he has also not seized the record allegedly furnished by CMO from the office of the DHS and as such no material whatsoever has been collected to show that the date of birth of the alleged Shanti Devi and the petitioner actually working in the field is other than the date of birth shown against their names in the list. While discharging the CMO concerned, the Ld. Judge has satisfied himself that none of the incumbents including the petitioner was ever called in his office and has collected their bio-data because there is no material on record; that in so far as the petitioner is concerned, her regularization order has been issued on 25-04- 1997. There is no complaint filed by any person as the petitioner herein, before any of the officials or the police agency. The Ld. Court below has on the one hand stated that at the stage of framing charge the court has to see that the material on record and the ground for presuming that the accused has committed offence but on the other hand without furnishing any material on record and without finding the fact of alleged 2nd Shanti Devi W/o Chuha Ram in existence officially or physically still the petitioner has put to charge which is neither legal nor correct to the facts and circumstances of the case; that the service record of the petitioner categorically reveals that she had served the Dept., signed the attendance register and received the salary with her signatures. As such the petitioner is neither a fake beneficiary nor alleged Shanti Devi W/o Chuha Ram ever physically attending the health center Ratnal; that the accused C.M.O., ?.?.O., and the concerned clerk have been discharged on the basis of the same evidence in the challan so question of criminal conspiracy does not arise at all. The petitioners pay received by her does not amount to the undue benefit and so question of corruption also does not arise.

(3.) In CRMC No. 248/2010, petitioners Sham Lal and Pawan Kumar seek quashing of order dtd. 16/7/2020 and charge framed against the petitioners under Sec. 120-B RPC read with Sec. 5(2) and 5(1) (d) of the Jammu and Kashmir Prevention of Corruption Act. Petitioners, namely, Sham Lal and Pawan Kumar in CRMC No. 248/2010 have challenged the impugned order dtd. 16/7/2010 on the grounds; that the impugned order and charge sheet is against law and facts. So the same is not sustainable; that as per the allegation, it is the CMO, his Senior Assistant and BMO, who are more responsible but the Court has held that CMO has furnished the list which contains neither the parentage nor husband of the incumbents while the Court has not considered that the CMO has furnished "the list along with all the relevant documents including the engagement orders by which they were engaged as Part Time Safaiwalas with date and time. This was not appreciated by the Hon'ble Court and the Court discharged the CMO who is more responsible ignoring the fact that the petitioners have no concern and have no records. The Part-Time Safaiwalas are working in Block Bishnah at various Sub Centres and the petitioners are working in the office of Director Health Services and it is the Director Health Services, who has issued the order of regularization and the petitioners have no concern while the list was prepared by the S.O, Govind Singh and sent the list along with the relevant materials. The Court discharged the CMO while it is the CMO who has done all the things and who has manipulated the list which is clear from the prosecution record and charged the petitioners who have no concern with that. Neither the petitioners, who are working as Sec. Officer and Senior Assistant, had the job of passing any order of regularization and they have no record also while the petitioners are the best witnesses instead of accused in the case; that the orders are also illegal on the ground that the Court has discharged the BMO Bishnah Dr. Bharat Bhushan Sharma on the ground that he has only directed the persons who were regularized to report at the Sub Centre allotted to them by the Director Health Services while the Court has not appreciated that the BMO has furnished the Bio-data of serving PTS and the BMO and CMO are equally responsible for sending the records to the office of Director Health Services for regularization of these PTS. BMO and CMO are the officers in whose office the record of these persons are maintained and neither in the office of petitioners who are serving in the office of Director Health Services. The Court has discharged the persons who are responsible and charged the petitioners who have no concern with the regularization of these PTS. So the orders are not sustainable; that the orders are also illegal on the ground that the Court has charged the petitioners under Sec. 120-B RF read with Sec. 5(2) of the Jammu and Kashmir Prevention of Corruption Act while there is no record which shows that the petitioners have ever done any criminal conspiracy and there is no material on record which proves the conspiracy of the petitioners with the Director Health Services or any of the officers while the petitioners have no concern with the issuance of any order by the Director Health Services. If anything has to be done it is done by the Director or CMO or BMO and Senior Assistant Govind Singh who has prepared the list and who have sent the documents and passed the order of regularization, and the petitioners have nothing to do with that. It is not in the job of petitioners. So the orders are not sustainable as no conspiracy has been proved; that the Court has also framed charge under Sec. 5(2) of the Jammu and Kashmir Prevention of Corruption Act while under Sec. 5(2) of the Act, if any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year which may extend to seven years and shall also be liable to fine, provided that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year but not less than six months. In the present case, Court has not mentioned that which misconduct has been committed by the petitioners while even this act does not fall under the criminal misconduct. Criminal misconduct cause with the definition that when a person commits any criminal misconduct but in the present case, no act of the petitioners falls under any of the category. So no ingredient of any Sec. has been proved and the petitioners have been involved in a false case and the Court has discharged the persons who are responsible and charged the petitioners who have no concern with any of the alleged act which is mentioned in the challan while it is the CMO, BMO and Senior Assistant, who are responsible. On the one hand, the Court has mentioned that the prosecution has attached with the charge sheet the documents named in the list of documents attached with the challan and on the other hand mentioned that some of the documents are lying with the prosecution. So it is clear that the Court without appreciating that it is the CMO who has sent the list along with Bio-data of the incumbents who are to be regularized and on the basis of that list regularization order was passed. So the order is not sustainable.