Ahmed Ali Fayyaz
JAMMU: The Jammu and Kashmir High Court has dismissed the petition of the deposed Chairman of Jammu and Kashmir Cooperative Bank, Mohammad Shafi Dar, seeking quashing of the Anti-Corruption Bureau (ACB) FIR in the Rs 223 crore loan scam. The Bench of Justice Vinod Chatterji Koul on Wednesday 27 May pronounced the judgment from Jammu through video conference which had been reserved, after hearing arguments and counter-arguments, on 20 May. Petitioner Mohammad Shafi Dar had challenged the ACB’s FIR No: 04 of 2020 dated 08-03-2020 filed under section 5 (1)(d) read with section 5(2) of Prevention of Corruption Act and sections 465, 467, 468, 471 and 120-B RPC in Srinagar. The petitioner had prayed J&K HC to use its inherent powers contained in section 482 of the Code of Criminal Procedure and quash the FIR. He had contended that the J&K Cooperative Bank was a private Bank established under Cooperative Societies Act and Rules and the money involved did neither belong to Government of Jammu and Kashmir nor to any nationalised Bank or NABARD. According to him, the respondents being authority of J&K Union Territory had no power or authority to interfere in the business of the Bank. “The powers of the High Court under Section 482 Cr. P.C are partly administrative and partly judicial. When it was felt that High Courts were unable to render complete justice, even if in a given case illegality was palpable and apparent, it was added by the Code of Criminal Procedure (Amendment) Act of 1923”, said the judgment. It added: “Section 482 Cr. P.C. is a sort of reminder to the High Courts that they are not merely courts in law, but also courts of justice and possess inherent powers to remove injustice”. “The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under section 482 is discretionary, therefore, the High Court may refuse to exercise the discretion if a party has not approached it with clean hands”, it added further. “It may not be out of place to mention here that inherent power cannot be naturally invoked in respect of any matter covered by a specific provision of the Code. It is only after the High Court is satisfied that either an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured, then the High Court must exercise its inherent powers under Section 482 Cr. P.C. This power can be invoked only in an event when aggrieved party is unnecessarily harassed and has no other remedy open to it. The power under section 482 is not intended to scuttle justice but to secure justice. In the present case, the matter pending trial before the court below is at the infancy stage and therefore, need not be interfered with”, the judge observed. “Impugned FIR has been lodged on 8th March 2020. Investigation thereon has just commenced and petitioner has come up with petition on hand beseeching quashment of FIR when it is at its infancy stage. No report as contemplated under the Code of Criminal Procedure has been submitted by concerned agency to the court empowered to take cognizance of the offences. Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of police to conduct investigation in a cognizable offence”, the judge recorded. “In my considered opinion, the instant petition is bereft of any merit and petitioner fails to make out a case for exercise of inherent powers under Section 482 Cr. P.C. to quash the FIR. The case is still under investigation and concerned agency is in the process of collecting evidence. The investigation is necessary and the same cannot be stopped, at this stage, in the proceedings under Section 482 Cr.P.C. As a sequel thereof, instant petition is dismissed”, Justice Chatterji ordered. While advocate M.Y. Bhat appeared on behalf of the petitioner, the UT Government and ACB were represented by senior Additional Advocate General Bashir Ahmad Dar. The ACB has filed the FIR after allegations surfaced that senior functionaries of the bank in league with one Hilal Ahmad Mir had sanctioned loan worth Rs 223 crore in favour of latter’s “River Jehlem Cooperative house Colony at Shivpora Srinagar” without it being registered with Registrar of Cooperative Societies, without completing any formalities and without any proper security or mortgage. Preliminary enquiry No.SLK-09/2020 was conducted by Anti Corruption Bureau Jammu into the allegations that Mohammad Shafi Dar, resident of Majeed Bagh Barzula Srinagar, Chairman J&K State Cooperative Bank Ltd., for fraudulently sanctioning loan to the tune of Rs. 250 Crore in favour of a non-existent Cooperative Society named “River Jehlem Cooperative house Colony at Shivpora Srinagar”.
“The aforesaid loan has been sanctioned on the pretext of construction of a satellite township at Shivpora Srinagar and till 01.05.2019, Rs.223 Crores have been fraudulently released to the said non-existent cooperative society by the Bank through its Chairman. The enquiry conducted further revealed that one Hilal Ahmed Mir, son of Kh. Samudllah Mir, resident of Magarmal Bagh Srinagar, Chairman of River Jhelum Cooperative House Building Society Ltd had approached the Administrative Department of Cooperative Societies through an application dated 01.01.2018 wherein he sought direction from the Department to J&K Cooperative Bank Ltd Srinagar for grant of financial assistance to the tune of Rs.300 Crore for taking over possession of 300 Kanals of proprietary land located in the outskirts of Srinagar city for purpose of construction of a satellite township”, reads the FIR filed by ACB.
ACB has claimed to have prevented an amount of Rs 187 crore from falling into the account of Dhar Seed Farm, owners of the land, even as it has not mentioned fate of Rs 36 crore already drawn by the land owners.
In follow up to the FIR, the UT Government dismissed Mohammad Shafi Dar as Chairman and removed Latief Ahmad Dar as Managing Director. It has arrested one accused, namely Hilal Ahmad Mir, but only called for “questioning” former Chairman and MD. Divisional Commissioner Kashmir, PK Pole, has been appointed as ex-officio Chairman and additional Commissioner Kashmir Tassaduq Hussain Mir as MD.
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