Excelsior Correspondent
SRINAGAR, Jan 30: High Court has quashed the charge sheet against various persons including officials and beneficiaries for acts and omissions relating to the transfer of state land in favour of the beneficiaries under Roshni Act.
Most of the petitioners have raised the contention that once the Roshni Act, the provisions of which are alleged to have been violated by them, has been declared null and void, meaning thereby as if the legislation had not existed at all, no prosecution against them can be sustained in law.
It has also been contended that, as per the judgment delivered by the Division Bench, the beneficiaries upon whom ownership rights have been vested in respect of the State land in terms of the Roshni Act are required to return the land to the State and, therefore, there is no loss to the State exchequer.
In fact, the beneficiaries, pursuant to the judgment have been asked to return the land vested in them by virtue of the Roshni Act and the amount of money deposited by them with the State exchequer, being the price fixed by the Committee in terms of the Roshni Act, has not been refunded to them.
In these circumstances, it is being contended that the petitioners/accused cannot be prosecuted for having committed the offence of criminal misconduct as defined under Section J&K Prevention of Corruption Act.
The contention of the respondent-Investigating Agency (CBI) is that the prosecution against the petitioners/accused has been launched pursuant to the directions passed by the Division Bench and, therefore, the contention raised by the petitioners/ accused is without any substance.
CBI contended that even if the Roshni Act has been declared unconstitutional and void ab initio, still then, if it is found that the petitioners/ accused have, while implementing the scheme under the Roshni Act, acted in a manner which gives rise to the commission of an offence under the P.C. Act, they cannot escape the prosecution, because they are not being prosecuted for offences defined under the Roshni Act but they are being prosecuted for offences defined under the P.C. Act.
Justice Sanjay Dhar while passing a detailed common judgment in 11 pleas said, the issue that is required to be determined, which is common to all these petitions, is as to whether, on account of the fact that the Roshni Act has been declared unconstitutional and void ab initio, the prosecution for offences defined under the P.C. Act against the petitioners/accused, who happen to be the public servants and the beneficiaries, can proceed. If the answer to the question is in the negative, we need not go into the merits of the individual petitions.
“However, in case it is found that, in spite of the Roshni Act having been declared void ab initio, the prosecution against the petitioners/accused can proceed in respect of offences as defined under the P.C. Act, then the individual role of each of the petitioners would have to be scrutinized on its own merits so as to ascertain whether or not any offence is made out against him”, the court added.
The argument raised by the counsels appearing for the petitioners that the Roshni Act is not in force as such they cannot be prosecuted under PC Act has been turned down by the court by observing that it is absolutely misconceived for the reason that the petitioners are being prosecuted not for an offence defined under the Roshni Act, which has been declared unconstitutional, but they are being prosecuted for an offence defined under the P.C. Act, which is in existence.
“Apart from this, even if the petitioners are being prosecuted for having violated the Roshni Act, which has been declared void ab initio, still then the fact of the matter remains that at the time of the alleged acts/omissions of the petitioners, the said legislation was in force”, read the judgment.
The court, however, dealing with all the cases in their facts and circumstances concluded that the material collected by the investigating agency against the petitioners does not disclose commission of any offence, much less an offence under Section 5(1)(d) read with Section 5(2) of the PC Act.
“Continuation of the prosecution against the petitioners in these circumstances would be nothing but an abuse of the process of law. Hence, the chargesheet deserves to be quashed”, the court concluded.
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