SRINAGAR: The J&K High Court has quashed an order by Chief Judicial Magistrate, directing investigation against officials into the allegations of bogus voting in Khanyar assembly segment which was won by National Conference’s General Secretary and former minister Ali Mohammad Sagar in 2014.
“For proceeding against a public servant a prior sanction by a competent authority in terms of 197 CrPC was must,” the court said while allowing a petition filed by the then Chief Electoral Officer Srinagar, Farooq Ahmad Shah and 11 other officials who were involved in the poll process.
Counsel for the petitioners referred to Supreme Court judgment titled Anil Kumar and others versus M K Aiyapa in support of their contention, emphasising that the apex court quashed a complaint against a public servant as there was no previous sanction by the government against him. The apex court, the counsel said, held that a magistrate cannot order investigation against a public servant while invoking powers under section 156(3) CrPC.
Shah and other officers had contended that as per the law, police machinery can be set into motion by the Election Commission of India or Chief Electoral Officer and not at the instance of a private person.
“Under the law the magistrate has to seek the report and if upon the perusal of the report he comes to conclusion that a cognizable offence is disclosed, then in that eventuality only he can take the cognizance in the matter and pass the orders for the registering of the FIR,” they had said, contending that the CJM has “completely ignored” the aspect of the matter while passing the order on February 4 last.
The magistrate, they had claimed acted “in a mechanical manner, abdicated his power under the Code in favour of SHO Police Station, Khanyar, by giving him liberty to register the case instead of himself looking into the material.” The order by the CJM, they had said, amounts to abuse of process of court and was bound to result in miscarriage of justice.
On 4 February 2015, the CJM had asked police station Khanyar to file investigation report in light of the complaint filed by Alam. “In case cognizable case is disclosed, register FIR and proceed expeditiously,” the CJM had said and directed police to file report before it.
Sagar was declared winner by a margin of 1167 votes and Alam has alleged that he won on the strength of the bogus votes.
However, Alam moved court alleging that Sagar won with the help of bogus votes with connivance of the officers.
“From the documentary evidence collected, it is abundantly clear that there have been multiple entries of voters, expired, non-existing and non-resident voters, tolling 1946 bogus votes,” Alam had said in the plea, seeking lodging of an FIR against Sagar and the officials arrayed as accused by him.