Point of Law: Framing of Charges - If court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.

JUDGMENT :

1. The present petition has been filed by the petitioner for quashing the order dated 24.11.2009 passed by the learned Special Judge, Anti-Corruption, Jammu (hereinafter to be referred as trial court) in case titled “State of J&K vs. Abdul Hamid” by virtue of which charges for commission of offences under section 5(2) read with section 5(1) (d) of the Prevention of Corruption Act, 420, 468, 471 RPC were framed against the petitioner on the following grounds:-

(i) That the petitioner had pleaded before the trial court that his date of birth was 27.03.1947 and he had not manipulated his date of birth as alleged in the FIR and subsequently finalized in the charge-sheet. The petitioner after his appointment in the Government service is not the custodian of his service book. The service book was never kept in custody of the petitioner. Being a Gazetted officer, the service book of the petitioner right from his appointment was maintained and kept under the custody of the drawing officer and the petitioner could not have manipulated his date of birth as 27.03.1949. As per Article 264 of the Civil Service Regulations, 1956, service book of a Gazetted officer is to be maintained by the office of Accountant General and in the foot note of the first page of the service book, it has been indicated that the entries made in this page of the service book should be verified at least once in five years and re-written on page Nos. 8 and 9 but in the instant case, this important instruction does not seem to have been complied with. The most important question arises is as to what happened to the service book prepared initially at the time when the petitioner was appointed as Assistant Surgeon in the year 1974 and joined the service in the officer of Director Health Services Srinagar on 31.07.1974.

(ii) That no offence under section 420 RPC has been made out as the petitioner cannot be said to have been induced any functionary of the Government to enter into a transaction so as to deceive him with a view to cause wrongful loss to him or wrongful gain to the petitioner.

(iii) That the petitioner has been wrongly charge-sheeted and charges for commission of offence under section 468 RPC have been framed by the trial court without appreciating the true spirit of the provision of the said section as prosecution is obliged under law to show that a document has been forged as contemplated in section 463 RPC. Likewise, no offence under section 471 RPC is made out against the petitioner as there is no evidence to show that the petitioner at any stage used the service book for getting any benefit.

(iv) That further offence under section 5(2) read with 5(1) (d) of P.C. Act is also not made out against the petitioner as it is pre-requisite that for invoking of said sections, the accused must have used corrupt or illegal means or otherwise abused his official position as public servant to obtain for himself or for any other person valuable thing or pecuniary advantage. In the present case, it was not the duty of the petitioner to prepare his service book as a Medical Officer nor was this act related to his official duty as Medical Officer. Merely on the ground that the entry at the first page was allegedly found in his hand writing, is not sufficient to hold the petitioner guilty of the offences.

(v) That one of the prosecution witnesses namely Dr. B. A. Bhatti initially admitted his signature on the first page of the service book as attesting officer but in his statement recorded on 22.03.2008, he denied the same after more than eight months of the recording of his statement just to give shape to case and further it was the petitioner, who himself sent a statement containing bio-data of gazetted officers of Block Mendhar on 23.07.1983 to the Deputy Director, Health Services under his signatures in which he had disclosed his date of birth as 27.03.1947. So, there was no material that the petitioner has furnished his wrong date of birth.

2. Response stan