HC dismiss plea of Ex-BOPEE chairman seeking suspension of sentence

09/08/2018

SRINAGAR, Aug 8: Justice MK Hanjura today dismissed application filed by Mustaq Ahmed Peer Ex-Chairman BOPEE who was convicted by the Special Judge Anticorruption in CET Scam 2012 seeking suspension of sentence.
While rejecting the prayer, Justice MK Hanjura observed that speedy trial is a right of the applicant/ appellant and it is also in the interest of justice. The Court has to ensure speedy trial which holds true in an appeal also. Therefore, the Registrar (Judicial) of this wing of the High Court shall solicit directions from Chief Justice for listing of the matter before the appropriate Bench so that the appeal is heard and determined expeditiously. It also needs to be stated that the applicant/appellant shall be provided all medical care at regular intervals as he has contended that he is sick and is suffering from some diseases. According to the Prosecution story, it came to be noticed, during the preliminary verification, that the results of the JKCET, 2012 had surprised a number of aspirants for the reasons that a good number of candidates from a particular district with insignificant merit in the qualifying examinations had not only qualified the examination but had also made it to the top ranks in the select list. It led to widespread public outcry and resentment against the fairness and genuineness of the examinations and some of the unsuccessful students even lodged their complaints as well.
The notion got further strengthened when most of those top-ranking candidates in the JKCET, 2012, failed in the internal session examinations and were not allowed to sit in the 1st year of the MBBS examination by their respective Colleges. During the course of preliminary verification, one of the successful candidates in the JKCET, 2012, namely accused No. 18, Naveed Ahmed Bhat, upon questioning could not even spell correctly the word 'Chemistry'.
It further came to the fore that one of the accused persons, namely Farooq Ahmad Itoo (turned to be an approver), who had been running a Computer Centre under the name and style of 'M/S Info-tech Computers at Bijbehara', was a close associate of accused No.1, namely, Mushtaq Ahmad Peer/ i.e. the applicant/ appellant herein, who had made the question papers of the JKCET, 2012 available to some candidates of a particular area in advance through his associates, touts, and parents of the aspirants against huge monetary considerations. Upon receipt of the report of the preliminary verification, the IGP, Crime, ordered the registration of the FIR and holding of a detailed investigation. It led to the registration of the FIR No. 24 of 2013 on 24th of September, 2013, for the commission of the offences punishable under Sections 420, 120-B of the RPC and 5(1)(d) r/w 5(2) of the Prevention of Corruption Act and the investigation ensured which was entrusted to a specially constituted team of Officers, headed by Dy.SP, Bashir Ahmad Dar. During the course of the investigation, what got revealed is that the approver, Farooq Ahmad Itoo, came in contact with the applicant/ appellant Mushtaq Ahmad Peer in the year 2001 when the latter, as Head of the Department of Computer Sciences, University of Kashmir, went to inspect the computer institute of the former for its registration with the National Council for Promotion of Urdu Language, New Delhi. Thereafter, the approver started visiting the applicant/ appellant Mushtaq Ahmad Peer and they developed intimacy and friendly relations with the passage of time. The approver started visiting applicant/ appellant Mushtaq Ahmad Peer at regular intervals with gifts and freebees and, later on, when the applicant/ appellant Mushtaq Ahmad Peer was posted as the Chairman BOPEE in February, 2008, the approver got the opportunity to seek favours in the selection of his candidates for the MBBS course on monetary considerations, which the applicant/ appellant Mushtaq Ahmad Peer accepted readily for their mutual benefit.
Finally, a criminal conspiracy came to be hatched by the applicant/ appellant Mushtaq Ahmad Peer and the approver, somewhere in March-April, 2012, when the applicant/ appellant Mushtaq Ahmad Peer took the charge of the Controller Examination from Dr. Gopal Gupta on 29th February, 2012 upon latter's superannuation. Under this well-knit conspiracy, the applicant/ appellant Mushtaq Ahmad Peer agreed to provide the copies of the question papers together with answer keys etc. to the approver in lieu of the payment of Rs.60,00,000/- (Sixty lac rupees) for further providing it to the potential candidates aspiring for admission to MBBS in advance of the scheduled date of the examination.
The approver Farooq Ahmad Itoo, in turn, started searching for the potential candidates. He contacted his friend and co-accused Sajjad Hussain Bhat, who was already in the business of facilitating admissions in various Medical Colleges outside the State, and struck a deal for providing him the papers in advance upon a consideration of Rs.30,00,000/-(Rupees thirty lacs). In the process, the approver made direct deals with nine candidates against payments of varied amounts of consideration.
Justice MK Hanjura after hearing both the sides observed that Conviction of a public servant, convicted in corruption cases, cannot be suspended just on the asking of it, as doing so will have adverse impact on the public interest. The pleadings of the applicant/appellant have to be scrutinized minutestly and judiciously. All the pros and cons have to be scanned and analyzed and, it is only then, that a conviction can be suspended. Corruption undermines the human rights and indirectly violates them. It is only if the Court feels satisfied that a case has, in fact, been made out that the conviction can be suspended.
It is only in exceptional cases that a conviction can be put in abeyance alongwith the sentence. Such power has to be exercised with great circumspection and caution and, for that purpose, the applicant/ appellant has to satisfy the Court as regards the evil likely to befall him, if the said conviction is not suspended. The offences committed by the applicant/appellant have a serious adverse impact on the fabric of the society. His actions have not even spared the son of a truck driver who had made the grade, but was shown the exit on flimsy grounds.
He would have been aspiring to become a Doctor, but, in the need and greed of earning undue pecuniary gains on the part of the applicant/ appellant, he, too, has not been spared and, therefore, in my considered opinion it is not a fit case where the judgment dated 25th of April, 2018, as passed by the Court of learned Special Judge Anti-Corruption, Kashmir, Srinagar, in case bearing FIR No. 24/2013, of Crime Branch, Srinagar, for the commission of offences punishable under Sections 420, 406, 201, 120-B of the RPC read with Section 5(1)(d) of the Prevention of Corruption Act, can be stayed and the sentence recorded against the applicant/ appellant suspended. With these observations, Justice MK Hanjura ordered that the application of the applicant/appellant, being MP No.01/2018, seeking suspension of sentence is found to be devoid of any merit and, as a sequel thereto, the same is dismissed. JNF

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