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CrlR no.33/2021

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

…

CrlR no.33/2021

CrlM no.1454/2021

Pronounced on: 02.02.2023

Union Territory of J&K through SHO P/S ACB

……..Petitioner(s)

Through: Ms Asifa Padroo, AAG

Versus

Mrs. Naseema Lanker

….…Respondent(s)

Through: Mr N.A.Beigh, Senior Advocate with

Mr Sofi Manzoor, Advocate

CORAM:

HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

JUDGEMENT

CrlM no.1454/2021

1. It is stated by applicant/petitioner that delay caused in filing Revision

Petition is not deliberate or intentional as it took time for

applicant/petitioner to decide as to whether judgement/order be

revisioned against or not, and that in this process time got consumed. It

is further stated in the application that the moment judgement was

passed and further process was initiated, the Government of India in

March 2020 ordered nationwide lockdown as a preventive measure

against COVID-19 pandemic, which was extended from time to time and

resultantly the matter remained pending for active consideration of the

Administrative Department and finally it was decided to avail remedy of

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CrlR no.33/2021

revision and the matter was referred to Law Department. Sanction to file

revision petition vide letter dated 25^th August 2021 was accorded.

2. Sufficient ground for condoning delay is made out by applicant and, as

such, application is allowed and delay of 718 days in filing revision

petition is condoned.

3. Disposed of.

CrlR no.33/2021

4. Through the medium of this revision petition, challenge is thrown to the

Order/judgement dated 5^th October 2019, passed by Special Judge

Anticorruption Kashmir, Srinagar (for short “Trial Court”) in a case

titled as State v. Mrs. Naseema Lanker and others, and for setting-aside

the same.

5. I have heard learned counsel for parties and considered the matter.

6. Perusal of impugned order reveals that final report in case-FIR

no.02/2022 for commission of offences under Section 5(2) P.C. Act Svt.

2006 read with Section 120B, 468, 471, 419, 420 RPC, was presented

before the Trial Court on 30^th September 2019. The case relates to

preliminary enquiry conducted into the allegations that respondent and

one Nissar Ahmed effected purchases of wind cheaters, trucking shoes

and torches for distribution among the employees deputed for Amarnath

Yatra on exorbitant rates from unregistered dealers leading to loss of

Rs.6.11 Lakhs to the Government Exchequer.

It would also come from perusal of order impugned that matter

was investigated on the basis of evidence, both documentary and oral,

and the investigation was concluded and complicity of Mrs. Naseema

Lanker, Nissar Ahmad Bhat, Mohammad Ashraf Lanker, Suhail Aslam

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CrlR no.33/2021

Rekhi and Manzoor Ahmad Sheikh, was proved and the case was

submitted to Government for accord of sanction for launching

prosecution against the said public servants as envisaged under Section 6

of P.C. Act, but the Government vide letter no.GAD (VIG)76-SP/6 dated

23^rd May 2008 declined to accord sanction for launching prosecution

against accused public servants.

The Trial Court viewed that sanctioning authority could not deny

sanction to prosecute a public servant indicted by investigating agency,

arbitrarily without assigning reasons and discretionary power has to be

exercised by competent authority in conformity with statutory provisions

and broader principles and that sanction to prosecute against retired

servant is not required. After viewing so, the final report has been

returned to petitioner to do the needful in light of the observation made

in the impugned order.

7. According to learned counsel for petitioner,Trial Court has returned back

the final report under Section 173 Cr.P.C. as the case in hand pertains to

Prevention of Corruption Act, so under Section 6 thereof it is mandatory

to obtain prior sanction