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PETITIONER: STATE OF JAMMU & KASHMIR

       Vs.

RESPONDENT: SHAM LAL & ORS.

DATE OF JUDGMENT:       10/05/1996

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) MAJMUDAR S.B. (J)

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      On discovering  that there  had been embezzlement worth crores  of   rupees,  by   way   of   misappropriation   and misutilisation of  government funds  meant for  purchase  of food grains and other essential commodities by the employees of  Jammu   &  Kashmir   Cooperative  Supply  and  Marketing Federation     Ltd.      (JAKFED     for     short),     the Commissioner/Secretary  to   the   Government,   Agriculture Production Department  filed  a  complaint  with  the  Crime Branch of  the Police  in  1994.  FIR  40/1994  came  to  be registered  on   the  basis   thereof.   Subsequently,   the complaint/FIR was  transferred to the Vigilance Organisation by the  Government and  the Vigilance  Department registered FIR No.  3/95 on  its basis  for offences under Section 5(2) PCA and  some other  offences under  the RPC and took up the investigation in  hand.  During  the  preliminary  stage  of investigation by  the Vigilance  Department, the respondents Filed a  writ petition in the High Court for quashing of FIR 3/95 and  as interim relief sought the stay of investigation into the  criminal case.  Notice was  issued and the learned single Judge  also passed  an ex-parte order staying further investigation till  the ’next  date’. The  State,  appellant herein, filed  a counter  to the  writ petition  as well  as objections to the stay petition.      On 12.7.95 the writ petition came up for hearing before the learned  single Judge.  Request for  adjournment of  the case was  made on  behalf of  learned counsel  for the  writ petitioners, which appears to have been opposed on behalf of the State.  The hearing  of the writ petition was adjourned. Since, the  earlier stay  order was  to last  till the ’next date’, arguments  were, however,  heard on  the question  of extension of  the stay order. The learned single Judge after taking into  account the  objections and arguments raised at the bar  was pleased  to refuse extension and he vacated the stay order  dated 27.5.95.  During the  course of the order, the learned single Judge observed:

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    "This is  a matter where an unusual      relief  is  being  claimed  by  the      petitioners for  staying  the  very      investigation  in   an  FIR   which      involves  commission   Of  offences      under the  Prevention of Corruption      Act and the Penal Code. In my view,      the extension  of  the  stay  order      passed on  26th May  1995, by which      investigation process  in  the  FIR      was ordered to be stayed, is likely      to defeat  the ends  of justice and      the purpose  for which  the FIR was      lodged.     The      process     of      investigation   relating   to   the      commission  of   serious   offences      cannot, in  the ordinary  course be      allowed to be stalled. It is always      however, open  to  a  party,  at  a      stage after  the completion  of the      investigation that  he may approach      a court  of competent  jurisdiction      for an  appropriate relief,  if  he      feels that  he is  aggrieved in any      manner  by   the  result   of   the      investigation.           It is because of the aforesaid      reasons that,  evenwhile I  propose      to adjourn  the case because of the      request of Shri Mohd. Aslam Bhat, I      am  not   inclined  to  extend  the      further operation  of  the  interim      directions of this court dated 26th      May  1995.  In  that  view  of  the      matter, therefore,  I   direct that      the  aforesaid  interim  directions      shall stand vacated forthwith."      The writ  petitioners, respondents  herein,  challenged the order  of the learned Single Judge dated 12.7.95 through a Letters  Patent Appeal. The Division Bench disposed of the LPA and  the learned single Judge was required to reconsider the order  dated 12.7.95 and till then the investigation was directed to  remain stayed.  In actual effect,therefore, the order dated  12.7.95 was  set aside and the stay application remanded for  fresh  consideration  by  the  learned  single Judge. The operative part of the order reads:      "Considering    the    matter    in      totality, we  are of  the view that      this appeal  can be  disposed of at      this  preliminary   hearing   stage      without notice  to the  respondents      in view of the innocuousness of the      order  proposed   to   be   passed.      Noticing that  the stay order dated      26.5.95 was  to hold valid till the      matter was  to be considered by the      writ court  on the  next  date  and      keeping in  regard that  prayer for      adjournment had  been made  on  the      personal grounds of learned counsel      for the  petitioners,  we  deem  it      appropriate to direct that the stay      matter shall  be  reconsidered  and      counsel for  the petitioners  heard      and   appropriate   orders   passed

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    whereon.  Order    accordingly  any      till the matter is considered again      by the  writ  court,  investigation      against the  petitioners shall  not      proceed in FIR No.3/95."      The State is aggrieved of this Order, hence this appeal by special leave.       Apart from  the question  that it  is rather  doubtful whether a  Letters patent  Appeal would lie against an order vacating an ex-parte interim order of stay, we find that the impugned order  of the  Division  Bench  is  otherwise  also unsustainable.  We  say  it  with  respect  to  the  learned Division Bench  that it was not a proper manner of disposing of the  Letters Patent Appeal. The Letters Patent Appeal has been "allowed" at the preliminary stage, without issuance of any notice  to the appellant and without  even admitting it. It could  not be  done. According to the Division Bench, the issuance of  notice was not considered necessary "in view of the innocuousness  of the  order proposed  to be passed". We cannot agree  with the  view of the High Court. The order of the Division Bench is not an ’innocuous’ order. The Division Bench has in actual effect set aside the order of the single Judge   dated    12.7.95   and   remanded   the   case   for reconsideration, without  expressly saying  so. The Division Bench also  restored the  order dated 27.5.95 by staying the investigation in  FIR 3/95.  Such an order could not be made by the  Division Bench  with hearing  the  parties.  On  the plainest consideration  of justice, in our opinion the Bench was obliged  to hear  the opposite  party i.e. the appellant herein before  passing the  impugned order more so since the impugned order before the Division Bench had been made after hearing the appellant, herein. We do not wish to express any opinion on  the  merits  of  the  controversy  in  the  writ petition but  find that  the order staying the investigation by the  Division Bench  in the  manner in  which it has been done is  not  at  all  sustainable.  The  grievance  of  the appellant that  it has  been  seriously  prejudiced  by  the impugned order is well founded.      This appeal  accordingly succeeds  and is  allowed. The impugned order  of the  Division Bench  is set aside and the order of the learned single Judge dated 12.7.95 is restored. The investigation shall be expedited.      The writ  petition shall  be decided on its own merits, in accordance  with the  settled law  on the  subject, after hearing the parties, expeditiously.