Detailed probe required in view of fresh material]
Mohinder Verma
JAMMU, June 12: In a significant order, Special Judge Anti-Corruption Baramulla, Bandipora and Kupwara Naseer Ahmad Dar has directed the Anti-Corruption Bureau (formerly Vigilance Organization) to further investigate the infamous Gulmarg land scam involving several high profile persons and submit supplementary charge-sheet within a period of four months.
The direction has been passed in the light of the order passed by the High Court on October 15, 2018 whereby the Trial Court was directed to hear the arguments on charge and discharge taking into consideration the records produced by the Vigilance Organization and the documents/material like the opinion of the Law Department and the Advocate General.
The High Court vide this order had also dismissed the application filed by the then Divisional Commissioner Kashmir Mehboob Iqbal and others seeking transfer of the case from the Special Judge Anti-Corruption Baramulla to any other court of competent jurisdiction.
As per two charge sheets sub-judice before the Trial Court at Baramulla, there are 20 accused in the Gulmarg land scam—Mehboob Iqbal, the then Divisional Commissioner Kashmir, Baseer Ahmad Khan, the then Deputy Commissioner Baramulla, hoteliers of Kashmir valley namely Mushtaq Ahmed Ganai alias Chaya, Mushtaq Ahmad Burza, Manzoor Ahmad Burza, Syed Musadiq Shah, Mohd Afzal Khanday and several middle rung officials of the Revenue Department, who were then serving in Baramulla and Tangmarg areas.
After hearing Senior Advocate Z A Shah, Advocate Sheikh Faraz Iqbal and a battery of other lawyers appearing for the high profile accused and Special Public Prosecutor for the Anti-Corruption Bureau, the Special Judge Anti-Corruption Baramulla observed, “before taking into consideration the arguments advanced by the respective counsels with regard to framing of charge/discharge, it would be important to refer some developments which have taken place till date in the instant case after the presentation of the report/charge-sheet under Section 173 CrPC”.
After registration of case, the accused persons challenged the FIR before the High Court and by virtue of order dated April 10, 2009 the High Court disposed of the petition by making certain observations.
The investigating agency after conclusion of the investigation presented charge-sheet before the Special Court Anti-Corruption Srinagar on September 25, 2012 and this court vide order dated June 25, 2016 deferred the decision on framing of the charge and directed the SHO Vigilance Organization Kashmir to inform the court whether any decision was taken by the Government after the Chief Secretary had directed the Revenue Department to put on hold the process till the matter is reviewed from legal angle.
The High Court vide its order dated October 15, 2018 had made references of various documents and accordingly made certain observations in the light of the referred documents/communications, the Special Judge Anti-Corruption further said, adding these documents were produced by the Vigilance Organization Kashmir/respondents before the High Court which included the communications issued by Special Secretary, Law, Justice and Parliamentary Affairs Department addressed to Commissioner Secretary General Administration Department, the opinion of the then Advocate General sought by the Law Department with regard to the grant of sanction or otherwise in the FIR and the legal opinion given by the Law Department which was later conveyed to the Inspector General of Police Vigilance Organization.
Moreover, the High Court has also given reference to few other communications which includes letter addressed by the then Deputy Commissioner Baramulla Baseer Ahmed Khan to the CEO of Gulmarg Development Authority to keep the processing of cases on hold under the J&K State Lands (Vesting of Ownership Rights to the Occupants) Act, 2001.
“The opinion of the Advocate General as well as the communications/letters, the reference of which has been given by the High Court, are not undisputedly part of the report filed in terms of Section 173 CrPC by the Vigilance Organization Kashmir against the accused persons. Furthermore, the reference of other documents given by the High Court in its order dated October 15, 2018 appeared to have been issued in the year 2016—after presentation of the charge sheet before this court and the fact of the matter is that the charges against the accused persons are yet to be framed”, the Special Judge further observed, adding “these documents /communications and the other facts don’t not form the part of the report under Section 173 CrPC. However, in view of the observations made by the High Court regarding these material/ documents in my opinion now assumes importance”.
The Special Judge further observed, “the Vigilance Organisation Kashmir /Investigating Officer of the case must have been the knowledge about the discoveries and the developments which have surfaced and taken place in the instant case from the date of registration of the FIR till date”.
“The investigating agency was not precluded from conducting further investigation in the case in view of developments which have taken place subsequent to the primary investigation which led to the filing of the instant charge sheet as well as the supplementary charge sheet against the accused persons”, the Special Judge said, adding “it is always the duty of the investigating agency to bring all the essential facts and material before the court in order to arrive at proper conclusion and finding on the point of charge/discharge or of the trial of the case”.
Referring Section 173 (8) of CrPC, the court said, “this section gives powers to the Investigating Officer to conduct further investigation of the case after he obtains further evidence, oral or documentary and thereafter shall forward the further report regarding such evidence before the Magistrate”, adding “although Magistrate has not been given powers in view of the plain language of the provision to direct for further investigation of the case but now through the various judgments of the Supreme Court of India as well as the High Courts of the country, it is now settled that the Magistrate can exercise the powers to direct for further investigation of the case if it appears that some new developments and discoveries have surfaced after the presentation of the charge sheet/report under Section 173 CrPC”.
“Since the charges in the instant case are not framed yet and although the cognizance of the matter has been taken but the same cannot debar this court to exercise the powers to direct for further investigation in view of the new and important facts which have been brought into the notice of the court as well as are also within the knowledge of the investigating agency”, the Special Judge said, adding “prima facie this court finds that documents/ material referred to by the High Court would have an impact on the fate of the case as they seem relevant to the matter before this court”.
“Hence, this court considers it proper, before taking any decision on the point of framing of charge/discharge at this stage, to direct the investigating agency to investigate further on the aspect what impact these documents/ material would have on the involvement of the accused / matter in controversy”, the Special Judge said and directed the investigating agency to submit supplementary charge sheet/report within a period of four months from the date of receipt of this order.
Accordingly, the court put up the matter along with the supplementary charge sheet on October 10, 2020.
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