Anti-Corruption Court dismisses CBK chargesheet against ex-PDP minister, 2 officers

Srinagar, Sep 1: ‘Criminal court has not to act as post office and become mouth piece of prosecution and frame charge at the wish of prosecution’, Special Judge Anti-Corruption Kashmir said as it discharged senior PDP leader and former works Minister Naeem Akhtar in connection with a case registered against him by the Crime Branch in 2019.

The Special Judge Anti-Corruption Srinagar, Surinder Singh also discharged former Managing Director (MD) of Jammu & Kashmir Projects Construction Corporation (JKPCC), Vikar Mustafa Shonthu and the then Company Secretary of the Corporation, Neeru Chadha in the case.

The Crime Branch Kashmir (CBK) had registered the case (FIR No.10/2019) against the three accused under Section 5(1)(d) r/w 5(2) P. C. Act) besides under sections of 420 (cheating), 201 (causing disappearance of evidence of offence), 167 (create or translate an incorrect document etc) and 120B (criminal conspiracy) of erstwhile RPC.

The case was registered after the then Government gave direction to SSP CBK regarding irregularity in the appointment of Shonthu as managing director of JKPCC. The CBK was also tasked with examining the role of chairman, the Board of Directors (BoD), the administrative secretary and company secretary in the matter and take action as per law.

This had followed after a fact-finding committee constituted by the government vide an order on November, 28, 2018 in its report submitted to the government on March 6, 2019, held as illegal and in gross violation of the laid down rules the appointment of the then managing director JKPCC, Shonthu.

The committee said that the original order issued by the chairman, the agenda items placed before the Board of Directors and the final order issued by the company secretary of JKPCC were incongruent to each other and beyond their competence.  Consequently, the case (FIR 10/2019) was registered and same culminated into filing of the chargesheet.

After hearing the arguments, the court observed that for charging the accused under any penal section, there should be some material on record for presuming that the accused has committed an offence for which he is to be charged.

“Calling a person to face charges without any sufficient evidence would amount to violation of fundamental rights. When the court is fairly certain that there is no chance of conviction even if all the evidence is considered as it is without cross examination, then the court can certainly discharge the accused,” the court said.

The Court noted that to prove criminal conspiracy u/s 120-B RPC, there must be an agreement between two or more persons to do or caused to be done an illegal act or an act which is not illegal by illegal means.

Underscoring that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same, the court held that the offence can only be proved largely from the inferences drawn from acts or illegal omissions omitted by the conspirators in pursuance of a common design.

“The material on record would nowhere show any iota of evidence direct or circumstantial to satisfy the court that there was a prior meeting of minds between the accused persons,” it said.

The Court observed that an offence of criminal conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference, which is not supported by cogent and acceptable evidence. “There was sufficient material to presume that accused have committed the offences”

With regard to charges for offence u/s 167 for framing an incorrect document with intent to cause injury and for destruction or disappearance of document punishable u/s 201 of RPC, the court said: “Mere mention of sections of law in the charge sheet does not ipso facto prove the charges against the accused”.

In order to prove the charges against the accused, the prosecution had to collect evidence to substantiate those charges against the accused and so far, there is no iota of evidence on record to prima facie prove the above said charges against the accused persons, it said.

Moreover, the court observed that “once there is no material found to frame the charges against the accused under the provisions of Special Act that is Prevention of Corruption Act, the other offences under RPC interconnected with the main offences are bound to be dropped.” The court noted that no prima facie suspicion could be drawn against the accused with which finger could be raised against them. The Court held that keeping in view the contents of charge- sheet, evidence on file and submissions of both the sides besides the law laid down on the subject and discussion made, there appeared no ground for proceeding against the accused.  “As such, the accused named in the charge sheet deserve to be discharged of the charges levelled against them under sec. 5(1) (d) r/w 5(2) P.C. Act and 420/201/167/120-B/RPC”.

“Consequently, no case for framing of charge against the accused is made out. Therefore, charges under the aforesaid sections of law are found to be groundless,” the court said and dismissed the chargesheet.

The accused were represented by advocate Altaf Haqani, advocate Faisal Qadri and Advocate  Feroz Ahmad.