Excelsior Correspondent
Srinagar, Oct 11: Observing that the investigating agency has not done its job in a fair and professional manner, High Court has upheld the judgment of a trial court acquitting the accused public servants as also the beneficiaries in issuing and obtaining backward certificates fraudulently 32 years ago.
The prosecution had challenged the acquittal judgment of Special Judge Anti-Corruption, Anantnag, whereby the public servants and beneficiaries involved in the offences (FIR No. 17/1990 for offences under Section 5(2) of J&K P.C Act and Sections 467, 468, 471 read with Section 120-B RPC) were acquitted of the charges.
Court said that the main witness, Nazir Ahmed Clerk of the Revenue Department, has neither been questioned during investigation of the case nor has he been cited as a witness in the challan.
“Obviously, his statement has also not been recorded during the trial of the case. By leaving out important persons acquainted with the facts of this case, the investigating agency has not done its job in a fair and professional manner”, Justice Sanjay Dhar said while upholding the acquittal of all accused involved in the fraud.
The Deputy Commissioner, court added, has not been made an accused and even the dealing assistants of his office have not been made the accused, then how come, the responsibility for issuing the certificate can be fastened upon accused-Tehsildar alone who, as per the evidence on record, was neither an issuing authority nor the SROs were available in his office.
Court from the evidence on record, said that the SRO which is subject matter of the instant case, was being acted upon by the Deputy Commissioner Anantnag even prior to the issuance of the certificate in favour of accused which means that the forged SRO was already available in the office of Deputy Commissioner, Anantnag.
Since a number of the persons belonging to the area in which accused-beneficiary was residing had already obtained RBA certificates in their favour on the basis of the a SRO, as such, the accused had no reason to doubt the authenticity of the SRO in question. A perusal of the record seized reveals that the certificates in favour of as many as 35 persons have been issued by the Deputy Commissioner, Anantnag on the basis of the SRO in question.
“This has resulted in leaving a number of lacunae in the prosecution case, the benefit of which has to go to the accused. For all these reasons, the view taken by the Trial Court that the charges against the accused are not established beyond reasonable doubt is definitely a possible view which can be taken on the basis of the evidence led by the prosecution in the instant case”, Justice Dhar concluded
The court therefore has held that it would not be open for it to discard the view of the Trial Court and substitute any other view in its place as there is no good ground to interfere with the impugned judgment passed by the Trial Court.
As per the prosecution case, Deputy Commissioner, Anantnag had, in the year 1989, written to the General Administrative Department that some persons have produced a photo copy of SRO 412 of 1984 whereunder certain villages of Anantnag and Kupwara districts have been shown as backward areas when the fact of the matter is that in the original SRO 412 issued by the GAD, these villages have not been declared as backward areas.
“The obligation to ascertain whether a particular village has been declared as a backward area in terms of a legally promulgated order also lies upon the office of the Deputy Commissioner. The Field Agencies are only required to submit a report as to whether a particular applicant is a resident of an area of which he claims to be a resident”, Justice Dhar recorded.
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