Full Judgment Text
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PETITIONER:
STATE OF JAMMU & KASHMIR
Vs.
RESPONDENT:
SHAM LAL & ORS.
DATE OF JUDGMENT: 10/05/1996
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
MAJMUDAR S.B. (J)
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
On discovering that there had been embezzlement worth
crores of rupees, by way of misappropriation and
misutilisation of government funds meant for purchase of
food grains and other essential commodities by the employees
of Jammu & Kashmir Cooperative Supply and Marketing
Federation Ltd. (JAKFED for short), the
Commissioner/Secretary to the Government, Agriculture
Production Department filed a complaint with the Crime
Branch of the Police in 1994. FIR 40/1994 came to be
registered on the basis thereof. Subsequently, the
complaint/FIR was transferred to the Vigilance Organisation
by the Government and the Vigilance Department registered
FIR No. 3/95 on its basis for offences under Section 5(2)
PCA and some other offences under the RPC and took up the
investigation in hand. During the preliminary stage of
investigation by the Vigilance Department, the respondents
Filed a writ petition in the High Court for quashing of FIR
3/95 and as interim relief sought the stay of investigation
into the criminal case. Notice was issued and the learned
single Judge also passed an ex-parte order staying further
investigation till the ’next date’. The State, appellant
herein, filed a counter to the writ petition as well as
objections to the stay petition.
On 12.7.95 the writ petition came up for hearing before
the learned single Judge. Request for adjournment of the
case was made on behalf of learned counsel for the writ
petitioners, which appears to have been opposed on behalf of
the State. The hearing of the writ petition was adjourned.
Since, the earlier stay order was to last till the ’next
date’, arguments were, however, heard on the question of
extension of the stay order. The learned single Judge after
taking into account the objections and arguments raised at
the bar was pleased to refuse extension and he vacated the
stay order dated 27.5.95. During the course of the order,
the learned single Judge observed:
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"This is a matter where an unusual
relief is being claimed by the
petitioners for staying the very
investigation in an FIR which
involves commission Of offences
under the Prevention of Corruption
Act and the Penal Code. In my view,
the extension of the stay order
passed on 26th May 1995, by which
investigation process in the FIR
was ordered to be stayed, is likely
to defeat the ends of justice and
the purpose for which the FIR was
lodged. The process of
investigation relating to the
commission of serious offences
cannot, in the ordinary course be
allowed to be stalled. It is always
however, open to a party, at a
stage after the completion of the
investigation that he may approach
a court of competent jurisdiction
for an appropriate relief, if he
feels that he is aggrieved in any
manner by the result of the
investigation.
It is because of the aforesaid
reasons that, evenwhile I propose
to adjourn the case because of the
request of Shri Mohd. Aslam Bhat, I
am not inclined to extend the
further operation of the interim
directions of this court dated 26th
May 1995. In that view of the
matter, therefore, I direct that
the aforesaid interim directions
shall stand vacated forthwith."
The writ petitioners, respondents herein, challenged
the order of the learned Single Judge dated 12.7.95 through
a Letters Patent Appeal. The Division Bench disposed of the
LPA and the learned single Judge was required to reconsider
the order dated 12.7.95 and till then the investigation was
directed to remain stayed. In actual effect,therefore, the
order dated 12.7.95 was set aside and the stay application
remanded for fresh consideration by the learned single
Judge. The operative part of the order reads:
"Considering the matter in
totality, we are of the view that
this appeal can be disposed of at
this preliminary hearing stage
without notice to the respondents
in view of the innocuousness of the
order proposed to be passed.
Noticing that the stay order dated
26.5.95 was to hold valid till the
matter was to be considered by the
writ court on the next date and
keeping in regard that prayer for
adjournment had been made on the
personal grounds of learned counsel
for the petitioners, we deem it
appropriate to direct that the stay
matter shall be reconsidered and
counsel for the petitioners heard
and appropriate orders passed
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whereon. Order accordingly any
till the matter is considered again
by the writ court, investigation
against the petitioners shall not
proceed in FIR No.3/95."
The State is aggrieved of this Order, hence this appeal
by special leave.
Apart from the question that it is rather doubtful
whether a Letters patent Appeal would lie against an order
vacating an ex-parte interim order of stay, we find that the
impugned order of the Division Bench is otherwise also
unsustainable. We say it with respect to the learned
Division Bench that it was not a proper manner of disposing
of the Letters Patent Appeal. The Letters Patent Appeal has
been "allowed" at the preliminary stage, without issuance of
any notice to the appellant and without even admitting it.
It could not be done. According to the Division Bench, the
issuance of notice was not considered necessary "in view of
the innocuousness of the order proposed to be passed". We
cannot agree with the view of the High Court. The order of
the Division Bench is not an ’innocuous’ order. The Division
Bench has in actual effect set aside the order of the single
Judge dated 12.7.95 and remanded the case for
reconsideration, without expressly saying so. The Division
Bench also restored the order dated 27.5.95 by staying the
investigation in FIR 3/95. Such an order could not be made
by the Division Bench with hearing the parties. On the
plainest consideration of justice, in our opinion the Bench
was obliged to hear the opposite party i.e. the appellant
herein before passing the impugned order more so since the
impugned order before the Division Bench had been made after
hearing the appellant, herein. We do not wish to express any
opinion on the merits of the controversy in the writ
petition but find that the order staying the investigation
by the Division Bench in the manner in which it has been
done is not at all sustainable. The grievance of the
appellant that it has been seriously prejudiced by the
impugned order is well founded.
This appeal accordingly succeeds and is allowed. The
impugned order of the Division Bench is set aside and the
order of the learned single Judge dated 12.7.95 is restored.
The investigation shall be expedited.
The writ petition shall be decided on its own merits,
in accordance with the settled law on the subject, after
hearing the parties, expeditiously.