The Jammu and Kashmir and Ladakh High Court on Friday ruled that a High Court’s scrutiny of the evidence and material collected by the prosecution in support of the charge, in exercise of its inherent jurisdiction under Section 561-A of the J&K Code of Criminal Procedure is not any higher than that of the court that framed the charge.
“Sifting of evidence to come to a conclusion contrary to the one arrived at by the trial Court in framing charge is not permissible”, Justices Sanjeev Kumar and Rajesh Sekhri observed.
The observations came while answering a reference pertaining to a land fraud scandal involving the Jammu and Kashmir Cooperative Housing Corporation Limited. The allegations involved a criminal conspiracy to embezzle public funds during the acquisition of land for a residential colony.
The reference stemmed from an order dated 02.01.2013 passed by Justice Massodi in a petition filed by the then MD of J&K Cooperative Housing Corporation Ltd against certain charges under the Prevention Of Corruption Act. The Single Judge encountered a 2009 judgment by another Single Bench in a similar matter.
However, Justice Massodi disagreed with the earlier decision and proposed to quash the charges against the petitioner in relation to specific offences under Section 471 RPC and 5(2) of the Prevention of Corruption Act. Accordingly, Justice Massodi referred the matter to the Chief Justice for consideration.
The bench examined the two orders and found that Justice Attar had earlier dismissed a petition filed by some of the accused challenging the charges against them. Justice Massodi, on the other hand, proposed to quash certain charges against the petitioner but referred the matter to the Chief Justice due to a conflict of opinions.
The court emphasized that during the framing of charges, the trial court’s role was to determine whether there was prima facie evidence supporting the charges against the accused. Scrutiny at this stage was limited to assessing whether the charge was groundless or if there was sufficient material to presume that an offence had been committed.
The High Court disagreed with Justice Massodi’s detailed analysis of the evidence, suggesting that it went beyond the scope of framing charges. It further added,
“We are, thus, of the opinion that the Bench of Justice Massodi went deep in analyzing the evidence on record and coming to the conclusion that there was no evidence demonstrating prima facie dishonest and fraudulent intention of the accused in paying the exorbitant rate of Rs.4.00 lacs per kanal instead of Rs.1.87 lacs per kanal, as was earlier settled with the land owners by one of the accused”.
It reiterated that the trial court should not engage in a deep analysis of the evidence to conclude whether the accused should be discharged. Instead, the focus should be on prima facie evidence. The bench added that the scrutiny by the Court at the stage of framing of the charge is limited to finding out whether the charge levelled against the accused is groundless or in its opinion, there is ground for presuming that accused has committed the offence.
“To come to a conclusion that there is ground for presuming that the accused has committed an offence, it is sufficient for the Court to conclude that there is prima facie material and evidence available on record, which would require the accused to be put on trial,” it underscored.
The court also took issue with the dismissal of charges under Section 471 of RPC and Section 5(2) of the Prevention of Corruption Act and pointed out that there was sufficient evidence to establish a prima facie case, especially regarding the fraudulent opening of a bank account through impersonation.
For the foregoing reasons, the bench differed with the view taken by Justice Massodi and found that the conclusion arrived at by Justice Attar is correct and in consonance with the evidence and material brought on record by the Investigating Agency.
Concurring with the view of Justice Attar, the bench dismissed the petition and directed the Court of Special Judge Anti-Corruption, Srinagar, to try all the accused including the writ petitioner in accordance with law for the charges framed against them.
Case Title: Brij Bhushan Sharma vs. State Of J&K
Citation: 2023 LiveLaw (JKL) 243
Counsel For Petitioner: Mr. A.H.Naik, Sr. Advocate with Mr. Zia Ahmad, Advocate
Counsel For Respondent: Mr Mohsin Qadri, Sr. AAG with Mr Maha Majeed, Advocate
Case No: 561-A No.17/2010 IA No.1/2010, CrlM No.801/2023
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