DB examines records regarding refusal of prosecution sanction against ex-Law Minister

Excelsior Correspondent
JAMMU, Apr 2: In a major development, the Division Bench of State High Court comprising Chief Justice M M Kumar and Justice D S Thakur today examined the records pertaining to the legality of the orders whereby sanction was refused initially by the then Governor against two former Law Secretaries—G M Thakur and A Q Parrey and subsequently the State Government declined sanction for prosecution against the then Minister for Law, Ghulam Hassan Mir (presently Minister for Agriculture) and other incumbents.
When the Public Interest Litigation seeking sanction for prosecution of alleged tainted IAS/IFS/KAS officers and politicians came up for hearing, Advocate Sheikh Shakeel Ahmad appearing for the petitioners—Sheikh Mohd Shafi and Prof S K Bhalla,  drew the attention of the Division Bench towards a communication No.GAD(Vig) 48-SP/88-II dated March 3, 2010 whereby Deputy Secretary, General Administration Department informed the Vigilance Commissioner that the case was considered by the competent authority in the light of opinion of the Law Department, which decided to close the case.
The counsel for the petitioners, while reading the contents of the communication, pointed out that this case was a glaring example of non-application of mind by the sanctioning authority as the sanction was refused against the then Law Minister solely on the analogy of withdrawal of criminal cases against two co-accused—G M Thakur and A Q Parrey, the then Law Secretaries.
He further stated that the communication of GAD and opinion of Law Department itself points out that sanction was declined just to save the Government from the embarrassment in view of raking up of issue in every session of State Legislature. On the specific query by the Chief Justice in the open court regarding the material or evidence against the then Minister for Law, Advocate Sheikh Shakeel Ahmad read the final investigation report which had been submitted way back on July 22, 1988 by the State Vigilance Organization to the General Administration Department for appropriate orders for sanction against 12 public servants including Ghulam Hassan Mir.
The counsel for the petitioners also read various paragraphs of final investigation report wherein the Vigilance Organization prima-facie established the approval and collusion of the then Minister for Law for illegally making 49 appointments in the J&K Legal Aid and Advise Board. He further argued that despite availability of cogent evidence against the Minister concerned the sanction was declined just on the doctrine of parity by taking a refuge that the Government had withdrawn same case against two important functionaries.
Advocate Ahmad also drew the attention of the court to a communication of the then Vigilance Commissioner wherein he wrote to the then Additional Chief Secretary Home Department that if these cases are withdrawn as a matter of public policy it would be in the fitness of things to withdraw the cases against all the persons.
While drawing the attention of the court towards paragraph 63 of the Government file, the counsel for the petitioners said that the file on which Governor reportedly recorded his observations could not be traced. He referred to various other paragraphs of final investigation report to justify that the instant case was fit case for judicial review as the sanctioning authority miserably failed to act fairly and honestly.
On the other hand, Senior Additional Advocate General, Gagan Basotra strongly resisted the submission of counsel for the petitioners and defended the action of the then Governor in declining sanction against two co-accused. He also defended strenuously the latest order of the sanctioning authority whereby sanction was declined against Ghulam Hassan Mir.
During the course of hearing, the attention of the Court was invited to paragraph No.62 of the file from where it came to light that the proceedings in FIR were stayed by the High Court on October 7, 1989 in writ petition No.113 of 1989, which was later dismissed.
After hearing the arguments of both sides and going through paragraph 63, the Division Bench observed, “for deciding the instant issue the record of this petition is required to be perused”, adding “both the counsels are directed to make available the entire record of writ petition No.113 of 1989”.  The DB also issued directions to the Registry to tag the record of the writ petition with the instant PIL.
In the open court, the Chief Justice also remarked: “How can the sanctioning authority appreciate the evidence and say that the evidence is inadequate when the same is the domain of the courts”.
Before the matter could be concluded, Advocate S S Ahmad invited the attention of the Division Bench towards the order dated August 28, 2012 in FIR No.8/2009 (infamous Gulmarg land scam) whereby the directions were issued for filing of challan against the retiring officers in the court of law and forwarding the papers in respect of IAS officer Baseer Ahmad Khan to Government of India for seeking sanction to prosecute him within two weeks.
The counsel for the petitioners pointed out that despite lapse of six months the compliance of the order has not been ensured. On this, Division Bench directed Assistant Solicitor General of India K K Pangotra to get the matter expedited and appropriate orders in this regard be made available before the court on next date of hearing—April 23, 2013.

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