Trouble Grows For Former Director Health Kashmir

SC Sets Aside J&K HC Verdict Quashing Proceedings Against Saleem-Ur-Rehman, Others  

Srinagar: The Supreme Court of India has set aside the verdict of 2018 of Jammu and Kashmir High Court quashing criminal proceedings against former Director Health Services, Kashmir Dr Saleem-ur-Rehman and other officials for misappropriation of funds in purchase of the sub-standard medical kits under centrally sponsored National Rural Health Mission (NRHM).

“It’s (J&K High Court) dealing with Preliminary Enquiry (PE) as ultra vires is unsustainable and deserves to be quashed and set aside and is hereby quashed and set aside,” the Supreme Court said in its verdict delivered on October 29.

It is pertinent to mention here that a case was lodged against Director Health Services, Kashmir along with some other accused persons for the misappropriation of Government funds during 2010-11 in purchase of the sub-standard medical kits under central government’s National Rural Health Mission (NRHM).

Issuing a final judgement in this case, in May 2018, the J&K High Court called for a quashing of the case against the accused persons in the FIR No. 32/2012 under section 5(1)(d) r/w 5(2) of the J&K Prevention of Corruption Act, 2006 and Section 120B of the Ranbir Penal Code.

In the same case, the Supreme Court had said that the Apex court was aggrieved and dissatisfied with the impugned judgment passed by the High Court of Jammu & Kashmir at Srinagar.

“By the impugned judgment and order, the High Court has quashed the entire criminal proceedings initiated against the respondent for the aforesaid offences.” reads the Supreme Court order.

The Apex court has said that the FIR and criminal proceedings in the case registered for the alleged offences are to be investigated and proceeded further by the authorised officer expeditiously.

“There is a non-compliance of the mandatory provision under Section 3 of the J&K PC Act, 2006 in as much as no special and separate reasoned order was passed by the authorising officer while conferring authority on a non-designated officer as per second proviso to Section 3,” the double bench declared.

The bench of Justice M.R.Shah and A.S.Bopanna has also said that the High Court of J&K had committed a “Grave error” in quashing the entire criminal proceedings by holding that a Magistrate has provided authorisation to a non-designated officer to investigate the FIR for the alleged offences under the J&K Prevention of Corruption Act, 2006 was “Bad in Law”.

“It is submitted that authorisation in the present case by the Senior Superintendent of Police, Vigilance Organisation is clearly covered by and falls within the scope of the second proviso to Section 3. It is submitted that the High Court has not advertised the distinct features of the second provision to Section 3. It is submitted that the second proviso does not demand the requirement of giving reasons for conferring authority on a non-designated officer to conduct investigation,” the court said.

Pertinently, the top court had allowed a plea filed by the state of Jammu and Kashmir and others challenging the May 2018 judgement of the high court which had quashed the criminal proceedings in the FIR against Dr. Saleem-ur-Rehman.

The J&K High Court had also quashed the November 2012 entrustment order passed by the senior superintendent of police authorising an inspector to investigate the FIR in the case.

“We are of the opinion that in the facts and circumstances of the case and considering the authorisation read with the second proviso to section 3 (of the Act), authorisation cannot be said to be illegal and/or invalid,” the bench said in its verdict.

In its verdict, the Apex court has also noted that it cannot be said that there was “any non-application of mind” on the part of the senior superintendent authorising the inspector, Nisar Hussain to enquire into the FIR.

“In the present case, the offence under the Prevention of Corruption Act is a substantive offence and the investigation in respect of the offence under the PC Act, when considered and coupled with the offence of conspiracy, there is no requirement of prior sanction of the magistrate,” the court said.

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Zaid Bin Shabir

Zaid Bin Shabir is a special correspondent at Kashmir Observer. He tweets @Zaidbinshabir

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