HC rejects bail of three inclduing judicial clerk in corruption case

08/04/2018

JAMMU, Apr 7: Justice MK Hanjura of J&K High Court rejected the bail applications of Ashiq Husain Farooqi Criminal Clerk and Nisar Ahmad Bhat, Clerk of the Advocate and Nisar Ahmad Dar, working in the prosecution wing of the Court who forged the court document for money.
While rejecting the bail, Justice MK Hanjura observed that these applications reflect a sad and sordid state of affairs. A horrendous crime is alleged to have been committed by none others than the ones who are said to have made insertions and interpolations in the statement of a witness namely, Aijaz Ahmad Rather, recorded by the Court of learned Special Judge, Anti-Corruption, Kashmir, Srinagar, in a case titled "State v. Ghulam Mohammad Bhat", (bearing File No. 12/B), instituted on the 25th day of July, 2008. While recording the statement of the accused as envisaged under Section 342 of the Code of Criminal Procedure (Cr. P.C.) on 17th January, 2018, the learned Presiding Judge, detected that the statement of the witness has been tinkered with. After taking note of this fact the Presiding Judge directed to hold a preliminary enquiry into the matter. He also brought the matter to the notice of the Hon'ble the Chief Justice of the High Court of Jammu & Kashmir through his Principal Secretary vide a communication bearing No. 121-122/SJACK dated 18th of January, 2018.
Justice MK Hanjura further observed that during the course of the investigation of the case, the statements of some of the witnesses conversant with the facts of the case have been recorded and the investigation, as gets revealed from the perusal of the 'Case Diary' as also the "Statement File of the case FIR No. 03/2018, Police Station, VOK", produced before this Court, is in vogue. The statement of Zahoor Ahmad Dar, has been recorded under Section 164-A of the Code of Criminal Procedure (Cr. P.C.) by the Court of learned Judge Small Causes (Judicial Magistrate 1st Class), Srinagar, the crux of which is that he went to the residence of one Ghulam Mohammad Bhat, ASI. He gave him a signed cheque for an amount of Rs. 30,000, leaving the other columns blank. He was asked to go to his residence by Nisar Ahmad Dar, who was serving in the prosecution wing. The said Constable told him to scribe his name on the cheque. He encashed this cheque from the Jammu & Kashmir Bank, Budgam, and handed over the amount of Rs. 30,000/- to Nisar Ahmad Dar, accused Constable. The statements of the other witnesses have also been recorded which prima facie point out to the culpability of all the applicants in the commission of the crime attributed to them.
Court further observed that there is, prima facie, evidence to suggest that all the applicants before this Court in these applications have, in one way or the other, facilitated the insertions that were made in the statement of the prosecution witness in order to bestow an undue benefit to the accused facing trial in the case. The act attributed to the accused/ applicants has to be treated on a different pedestal and the age old axiom of the law that grant of bail is the rule or that the accused is presumed to be innocent unless and until his guilt is proved, cannot hold the roost in this case, where insertions have been made in the statement of a witness to give the benefit to the accused and the accused Criminal Clerk, namely, Ashiq Hussain Farooqi, was the custodian of the file and he has violated the trust imposed on him by the Court. He has violated the fiduciary relationship that existed between him and the employer. Nisar Ahmad Dar, working in the Police Force, which, for all purposes, is supposed to be disciplined one, has acted contrary to the solemn oath that he has taken and the Clerk of the Advocate, whose culpability has also surfaced prima facie in the instant case, was also a part and parcel of the system governing the administration of justice that was feeding him. It is a case where the old adage, order or truth and justice" fits to a “T”.
Justice MK Hanjura after hearing both the sides observed that Looking at the instant applications from the perspective of the law laid down above, the applicants herein acted in concert and removed the statement of one of the prosecution witness and were, thereafter, able to interpolate the same before the machinery of the law could come into motion. The applicants have committed an offence as would impair and undermine the sanctity of the Courts and, therefore, the discretion vested with the Court under Section 490 of the Code of Criminal Procedure (Cr. P.C.) cannot be exercised in their favour. They have tried to pollute the fountain of justice and to cap it all the investigation of the case has not come to an end as yet. With these observations High Court rejected the bail applications. JNF

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