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Magistrate can order further investigation not re-investigation: HC

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STATE TIMES NEWS

JAMMU: Justice Wasim Sadiq Nargal of Jammu & Kashmir and Ladakh High Court while delivering a significant judgment, observed that it is within the domain of the Magistrate to order further investigation only, however, the power to direct re-investigation lies with the higher Courts, based on the facts in each case.
Justice Wasim Sadi Nargal allowed the petition to the extent of holding the order the Order of re-investigation dated December 31, 2018 passed by Special Judge Anti-Corruption, Doda, as unsustainable in the eyes of law and is liable to be quashed.
Accordingly, the Order of re-investigation dated December 31, 2018 is quashed.
Further, the subsequent order passed by the Learned Special Judge Anti-Corruption, Doda dated January 30, 2023 ordering further investigation, for the reasons spelled out in the said order, being an offshoot of earlier illegal order of re-investigation is also quashed.
Justice Wasim Sadiq Nargal further observed that given the nature of allegations alleged in the complaint and the nature of investigation conducted by the investigating agency (Vigilance Organization Jammu), this Court, in terms of its power under Section 482 of the Code, deems it proper to order for a fresh investigation in the present case, preferably within a period of two months from today, under the supervision of Director, Anti-Corruption Bureau, J&K, with a view to ensure fair and just investigation and the Anti-Corruption Bureau shall submit the report of the said investigation before the learned Special Judge Anti-Corruption, Doda, who shall proceed thereafter in accordance with law and it is not for this Court to examine, whether the contents of the complaint are correct or not.
Nonetheless, the same requires to be thoroughly investigated and an investigation of such a nature per se would also aid the petitioners to clear their position, rather than being subjected to face multifarious litigations and investigations.
Therefore, it is in the interests of the petitioners/accused that the competent agency under the supervision of a senior officer is permitted to investigate and bring out the true facts before the court of competent jurisdiction.
It goes without saying that the manner in which an investigation has to be done lies within the domain and expertise of the investigating agency.
Consequently, any observation in the judgment should not be construed as a direction to conduct the investigation in a particular way or from a particular angle.
Briefly put, the facts of the present case are that the Police Station, Vigilance Organization, Jammu registered FIR No. 07/2013 against the petitioners U/S 5(1) (d) r/w 5(2) J&K Prevention of Corruption Act, 2006, 120-B Ranbir Penal Code, for misappropriation of funds by dishonest and fraudulent means.
The allegations which had resulted in the registration of FIR related to items that resulted in an enquiry by the department are under the following major heads: A. Construction of pond at Sheel B. Construction of work at the graveyard, Dungram C. Construction of Pacca Path near the house of Chandrakant and Mir Hussain Shiva Proper. The allegations pertain to the fraudulent withdrawal of funds by officers of the Rural Development Department, Block Ghat, Doda, which revealed that during the years 2009-10 and 2010-11, the then Block Development Officers namely Abdul Karim Tantray and Akthar Hussain Qazi, Executive Engineer REW Doda, namely, Kewal Krishan Gorkha, Assistant Executive Engineer, namely, Manzoor Ahmed Mir, Junior Engineers, namely, Surinder Manhas, Mukesh Sharma, Musrat Parvaiz Naik and some village level workers hatched a criminal conspiracy and in pursuance thereof, withdrew an amount of Rs. 3,93,209 (Rupees Three Lac Ninety-Three Thousand Two Hundred and Nine) against three non-existent works to be executed in Panchayat Hanch, Seel, and Shiva of Block Ghat and misappropriated the same dishonestly and fraudulently, thereby, causing a loss to the state exchequer.

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