Gulmarg Land Scam

HC quashes trial court order and directs trial court to hear arguments on charge/discharge

18/10/2018

JAMMU, OCT 18: In a significant order Justice M.K. Hanjura of Jammu and Kashmir High Court (Srinagar Wing) has allowed the revision petition filed by Former Divisional Commissioner Kashmir Mehboob Iqbal (IAS) against the order dated March, 31, 2018 passed by 1st Additional District Judge, Special Judge, Anti-Corruption for the Districts of Baramulla, Kupwara and Bandipora whereby the trial Judge had declined the permission to place on record certain documents and had fixed the matter for arguments on the framing of charge.
While allowing the Revision Petition arising out of much publicized Gulmarg land scam Justice M.K. Hanjura observed that looking at the instant case from yet another angle, it is not a case where the respondent-State had not relied upon these documents, but the respondent (SVO), by playing a mischief in concealing and deliberately withholding them so that the Court is incapacitated to look into their contents, placed the covering letter of the Law Department only before the Court in which a mention has been made of Annexures-"E" & "F", but these Annexures have not been attached to the file. Justice Hanjura further observed that it was the duty of the trial court to find out whether the report laid in terms of Section 173(2) of the CrPC is in order when the reference was placed to Annexures-"E" & "F" in the covering letter attached to the file. Annexures-"E" & "F" were, thus, a part of the record and the SVO had to be directed to produce these documents before the Court.
Justice M.K. Hanjura further observed that VOK submitted the final investigation report to the GAD and in the final investigation report so submitted by SVO was referred to the Law Department for legal opinion and the legal opinion was given by the Law Department which was conveyed by the GAD to the IGP SVO on September, 16, 2016 and the Law Department directed the VOK to apprise the trial court with the documents marked as Annexures-"E" & "F" ranging from Page 97 to 112 attached to the Revision Petition and these documents unequivocally stated that Roshini Act is applicable to the land held by the Gulmarg Development Authority as can be seen from Pages 103 and 112 attached to the Revision Petition and also that no case is made out against the petitioners and no criminality can be attributed to the petitioners for having held the said Act applicable and the VOK chose to steal the same from the scrutiny of the Special Judge Anti-Corruption. After hearing Senior Advocate B.A. Bashir with Advocate Sheikh Faraz Iqbal appearing for Mehboob Iqbal (petitioner) and AAG N.H. Shah appearing for VOK whereas Advocate Azhar-ul-Amin appearing for private respondents Justice M.K. Hanjura further observed that testing the instant case on the above parameters of law the application under Section 94 CrPC could not have been rejected by the trial court in the most un-cavalier manner by giving a go-bye to the directions of the High Court passed in exercise of its inherent power vested in it by the CrPC and the trial court had no option but to comply with its mandate, but the trial Judge in disobedience of the directions of the High Court requiring the prosecution to approach the Government for appropriate decision.Justice Hanjura further observed that the trial Judge by rejecting the application of the petitioner and by posting the matter for arguments on charge, has virtually re-wrote his own order and has passed the order in derogation of the directions of the High Court and the earlier order dated June, 25, 2016 passed by the same court which depicts a patent abuse of power and transgression of limits, as a consequence of which, serious prejudice and irreparable loss has been caused to the petitioner and the proforma respondents. With above-referred observations and directions Justice M.K. Hanjura allowed the revision petition filed by the Former Divisional Commissioner Kashmir Mehboob Iqbal and quashed order dated March, 31, 2018 and further directed that the record produced by the Vigilance Organization before this Court alongwith the trial court record shall be remitted to the trial court and the trial court shall hear the arguments on charge and discharge, taking into consideration the records produced before this Court by the Vigilance Organization. JNF

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