Jammu & Kashmir High Court – Srinagar Bench
Zubair Ahmad Khan vs Union Territory Of Jk And Ors on 13 March, 2025
Serial No. 87
Suppl. List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM(M) No. 126/2025
CrlM. No. 264/2025
Zubair Ahmad Khan ... Petitioner(s)
Through: Mr. S.F.Qadiri, Sr. Adv. with Mr. Sikander Hyaat Khan,
Advocate
Vs.
Union Territory of JK and Ors. ...Respondent(s)
Through:
CORAM:
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
ORDER
13.03.2025
01. Issue notice to the respondents in the main petition as well as in the
interim application, returnable by the next date of hearing for filing of
response/objections, subject to taking of steps within a week’s period.
02. Heard learned counsel for the petitioner in respect of his prayer for grant
of interim relief.
03. It is contended by learned counsel for the petitioner that a preliminary
verification/enquiry bearing No. 06/2023 came to be initiated by the
Police Station, Economic Offences Wing, Crime Branch, Srinagar,
pursuant to a complaint made to the respondent no. 5- Special Director
General of Police, Crime Headquarter, Jammu, in the form of a
communication bearing No. PHQ/P&T/COC-2/2022/149-51 dated 12th
January, 2023, by the respondent no. 2-Director General of Police, PHQ,
J&K, Jammu, for verification of the allegations of criminal misconduct
as defined and punishable under Section 13 of the Prevention of
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Corruption Act, 1988, [hereinafter referred to as the “PC Act” for short],
criminal breach of trust, forgery and preparation of forged documents
under a criminal conspiracy punishable under Sections 409,467,468, 471
and 120 of Indian Penal Code, 1860 [hereinafter referred to as the
“IPC” for short] against the petitioner and some others, which came to be
concluded and approved as, “Not Proved”. He contended that the
aforesaid preliminary verification was initiated by P/S EOW Crime
Branch, Srinagar, after seeking the prior approval from the Government
of Jammu and Kashmir through the respondent no. 1 in terms of the
provisions of Section 17-A PC Act. He contended that action of the
respondents falls exclusively within the ambit of PC Act read with the
relevant provisions of the Code of Criminal Procedure, 1973, [though
repealed but applicable in the case & hereinafter referred to as the
“Code” for short]. It is further contended by the learned counsel for the
petitioner that Section 17-A of the PC Act, which was invoked by the
respondents for initiating the preliminary verification, is to be read with
the provisions of Section 17, although the later section relates to the
investigation only. The learned counsel further contended that, as
hereinbefore mentioned, the preliminary verification/enquiry bearing No.
6/2023 upon being
04. held by the P/S EOW of the Crime Branch, Srinagar, was concluded as
“Not Proved”, which finding of the respondent no. 6 was agreed by the
respondent no. 5 vide Communication No. CHQ/Clt/K-222/2023/E-
72342165/2682-83 dated 12th February, 2024. As, according to the
learned counsel, the order impugned issued by the respondent no. 1
regarding the appointment of Enquiry Officer for conducting a fresh
enquiry against the petitioner under Section 17-A of the PC Act in
relation to the PV No. 6/2023 of Police Station, EOW, Crime branch,
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Srinagar is unknown to the provisions of law especially that of the PC
Act and the Code.
05. The learned counsel further argued that firstly there is no legal
justification at all for re-verification of allegations that have already been
verified/enquired into and approved by the Competent Authority and
secondly without prejudice to the said position of the law, same cannot
be ordered to be conducted by an officer outside the Investigation
Agency of Police Station, EOW, Crime Branch, Srinagar. The learned
counsel submitted that the action of the respondent no. 1 in issuing the
impugned order does not appear to be a justified as being unwarranted
under law.
06. The learned counsel, in support of his contentions, placed reliance upon
the law laid down in Shree Shree Ram Janki Ji Asthan Tapovan
Mandir vs. State of Jharkhand ( 2019) 6 SCC. He contended that
issuance of the impugned Government Order No. 142-Home of 2025
dated 5th March, 2025 is contrary to the concept and philosophy of life
and liberty guaranteed to a person under Article 21 of the Constitution.
He submitted that ends of justice demand the setting aside of the
impugned order.
07. The learned counsel further submitted that he has approached this Court
invoking its inherent power vested in it under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, corresponding to the Section
482 of the Code and also the extra ordinary powers under Section 226 of
the Constitution. He submitted that pending disposal of the main petition,
the operation of the impugned order may be stayed, as a prima facie case
appears to be made out in favour of the petitioner with the balance of
convenience also tilting towards him, who is, as such, likely to suffer an
irreparable loss in case the interim relief is not granted to him. He
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submitted that for the sake of interim relief, he craves the leave of this
Court for consideration of the facto-legal grounds taken in the main
petition.
08. Considered the submissions made by learned counsel for the petitioner.
09. Perused the interim application supported with an affidavit. Also perused
the main petition and copies of the documents enclosed with the same as
Annexures thereto.
10. List on 26th March, 2025.
11. In the meantime, subject to any vacation or modification upon the
consideration of objections/arguments and till next date of hearing before
the Bench, the operation of the impugned Order No. 142-Home of 2025
dated 5th March, 2025, shall remain stayed.
12. Needless to mention that this Court is conscious of the fact that challenge
to the impugned Government Order has been thrown only by the
petitioner when the learned Inquiry Officer through the said order, stands
so appointed also for fresh enquiry against some others and the interim
relief granted covers those others also, having regard to the closure of PV
and the subsequent approval thereof as against them also.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR:
13.03.2025
“Shamim Dar PS”
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