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| ‘Alleged tempering of DOB case’ | | HC dismisses Medical Superintendent’s petition | |
JAMMU, JULY 20- First Pusine Judge of Jammu and Kashmir High Court, Justice Nisar Ahmed Kakru, dismissed a petition filed by Dr. Abdul Hamid Mir, the then Medical Superintendent District Hospital Udhampur, against whom VOJ has registered FIR for allegedly tempering date of birth.
In the petition it has been alleged that NC MLA Syed Mushtaq Ahmed Bukhari who has political rivalry with the petitioner’s family and when the petitioner was posted as Deputy CMO Rajouri, the said MLA raised a Q.D in the Legislative Assembly on August 27, 1998. It appears that at the instance of Syed Mushtaq Ahmed Bukhari some enquiry was also got initiated against the petitioner for the alleged tempering of date of birth. This was revealed to the petitioner only when an FIR No 19/2006 was registered with the P/S VOJ for the alleged commission of offence u/s 5(2) PC Act 2006 r/w section 420 RPC.
In the petition it has been submitted that the petitioner was retired vide Government order dated February 14, 2007, indicating therein that Dr Abdul Hamid Mir should be deemed to have retired on superannuation with effect from March 31, 2005 on attaining 58 years of age. The petitioner filed a petition in the High Court challenging the order of recovery, the High Court in that writ petition 437/2007 vide order March 9, 2007 stayed the recovery of the salary and other financial benefits from the petitioner without issuing a show cause notice as to why the recovery be not made from him. The result of the registration of FIR that the respondents are not releasing the pension and not even proceeding with the investigation of the case, the petitioner sought quashment of FIR No 19/2006 registered by the VOJ.
Justice Kakru, after hearing Adv KS Johal appearing in the fresh petition 597/2007 filed by the petitioner Dr. Mir, observed that this second phase of litigation is aimed at indulgence of the Court for quashing the FIR 19/2006 registered against the petitioner, which emanates from the allegation of tempering with the date of birth by the petitioner to his advantage making it as March 27, 1949 instead of March 27, 1947. The Government order February 14, 2007 passed by Commissioner/Secretary Health and Medical Education Department is also challenged, having the effect of retirement retrospectively from March 31, 2005. Petitioner has also challenged the notice of February 27, 2007 issued by Director Health Services Jammu requiring him to deposit the entire amount of salary drawn by him for the period he has overstayed in the service. These grounds need not be dwelt upon in the present petition reason as the order has already become the subject matter of 437/2007. The grievances of the petitioner against registration of the case innocence of the petitioner by disputing involvement in the alleged crime is main ground which needs to be appreciated in the light of the events detailed in the FIR alleging abuse of official position by the petitioner by having willfully changed his date of birth succeeding in obtaining pecuniary benefits besides other amenities.
Justice Kakru further observed that it goes without saying that registration of FIR does not amount to finding of the guilt of the petitioner, that being the settled legal position, the question that arises is as to whether, any of the petitioners right is violated why registration of the FIR. The answer is bound to be in the negative because there cannot be two opinions that registration of a case and investigation of cognizable offence falls within the domain of the statutory authorities, the statute does not empower the respondents to investigate into the allegations, situations or conceivable where extra-ordinary jurisdiction of the Court is invoked to prevent abuse of the process of law but examining the case of the petitioner from any angle, Court is of the considered opinion that by taking cognizance of the offence, the respondents cannot be said to have abused such process. There being no breach of statute, indulgence is uncalled for the petition is dismissed with the direction to the registry that registry shall segregate the record of SWP No 437/2007 to be listed at its own turn.
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