The court established the authority of the court to involve an additional accused, the nature of evidence required for arraigning an accused, and the limitations on the court's power to order further investigation.

JUDGMENT :

SANJAY DHAR, J.

1. The petitioner has challenged order dated 16.06.2012 passed by Additional Special Judge, Anticorruption, Kashmir, Srinagar, whereby the learned Special Judge has, after holding trial of the case, directed the respondent to place the record before the competent authority for considering accord of sanction for prosecution against the petitioner in terms of Section 6 of the J&K Prevention of Corruption Act. A further observation has been made vide the impugned order to the effect that the respondent can probe certain aspects as mentioned in the impugned order in terms of Section 173(8) of Cr.P.C.

2. Before coming to the grounds of challenge, it would be apt to notice the facts leading to filing of the instant petition. It appears that FIR No. 04/1991 for offence under Section 5(2) of J&K Prevention of Corruption Act came to be registered with Vigilance Organization, Kashmir. After investigation of the case, the charge sheet came to be filed by the investigating agency against Dr. Gh. Hassan Khan, the then Block Medical Officer, Bandipora and the petitioner was cited as a prosecution witness in the said challan. As per the charge-sheet, an amount of Rs. 30,000/- on account of payment of incentive charges under family planning programme, was stated to have been drawn from Bandipora Treasury by the aforesaid officer in the month of February, 1990 and the said amount was not accounted for. It was alleged in the charge sheet that the aforesaid amount has been fraudulently and dishonestly misappropriated by the officer and the officials connected with its drawl and that there were also mutilations/tampering in the drawl register and cash book pertaining to the aforesaid amount.

3. After framing of charges against accused Dr. Gh. Hassan Khan, trial of the case commenced. When all the prosecution witnesses were examined and the case was set down for recording of statement of accused Dr. Gh. Hassan Khan under Section 342 of Cr.P.C. the learned Special Judge observed that the evidence on record, prima facie, discloses the involvement of PW-9, Cashier Nazir Ahmad Ganai, the petitioner herein. It is in these circumstances that the impugned order came to be passed by the learned Special Judge.

4. The impugned order has been challenged by the petitioner on the grounds that there is no provision in the Code of Criminal Procedure or in any other law in existence to array a person as an accused in the pending trial, particularly when the investigating agency, after investigation of the case, had not found any material against the petitioner; that there was no material before the learned Special Judge to seek impleadment of the petitioner as an accused; that it is not open to a court to direct the competent authority to accord sanction for prosecution and that once the trial of a case has been completed, it is not open to the court to direct further investigation of the case.

5. I have heard learned counsel for the parties and perused the record of the case.

6. So far as the contention of learned counsel for the petitioner that there was no material before the trial court to observe that the petitioner is, prima facie, involved in the alleged crime, is concerned, the same is without any substance. The learned Special Judge has very elaborately and in a lucid manner dealt with this aspect of the matter and has noted that there is evidence on record that the petitioner and the original accused were responsible for tearing the page of Contingent Register on which bill for Rs. 3,000/ was entered and instead of it, at the instance of the original accused, the petitioner had prepared the bill for Rs. 30,000/-. The learned Special Judge has also noted that there is material on record to show that the drawl register, contingent register and cash book used to be in the custody of the petitioner herein. So, there was enough evidence on record before the learned Special Judge to observe that there is, prima facie, involvement of the pe