J & K Public Service Commission through Secretary vs State through C.B.I

Syed Bashiruddin, J.—The J and K Public Service Commission conducted combined competitive services examinations in the year 1995.

The process culminated in impaneling on select list the candidates who succeeded. The state government acting on select list issued order of

appointment in favour of selectees. Some of the candidates who failed to make to the selection grade, filed number of writ petitions. Seven writ

petitions with lead case Mohan Lai vs. State (SWP No. 676/99) came to be disposed of by a common judgement. The court on the statement of

Shri D.C. Raina, Advocate of P.S.C. that Public Service Commission has resolved to refer the matter to CBI, directed CBI to investigate pilferage

and tempering of answer books/ answer scripts. FIR has been registered while sealing the record of the said examinees of PSC. The investigation

agency summoned original answer scripts of candidates who passed the written examination and then were called for interview. The original award

rolls, set and sent by the examiners with other documents were also required by the investigating agency. The High Court has taken care to provide

opportunities to the parties to seek directions from the court in respect of the said matter by observing thereto in CFMP No. 2954/99 (OWP No.

679/99)"" parties as well as CBI are at liberty to seek other and further directions as may be required from time to time in this behalf."" The High

Court is already seized of the matter in the main petition as also in the CMPs filed thereto.

On the application of CBI Inspector, the Investigating Officer, Chief Judicial Magistrate, Srinagar passed an order on 13.09.2000 asking the

Public Service Commission to handover the documents to Investigating Officer in connection with Investigating Officer in connection with

investigation of the case. On further motion of the investigating agency that the PSC is not cooperating and is not giving record to the agency, the

CJM, Srinagar passed another order on 20.09.2000 on complaint of the noncompliance of earlier order. Notice was issued and the PSC

appeared through counsel. However, the CJM, Srinagar asked for appearance of the Secretary of PSC. Against these two orders PSC through its

Secretary filed a revision petition which came to be disposed of as dismissed by order dated 13.03.2000 by Addl; District and Session Judge,

Srinagar. This order of dismissal of the revision is under challenge and prayed to be quashed in exercise of power u/s 561ACr.P.C. by this court.

Heard Ld. counsel for the petitioner. Record examined. Impugned order perused. The resolution of PSC and registration of FIR is not denied.

The reference of the matter to and investigation by CBI, at the instance of PSC, by the High Court is not also denied. Sealing of the relevant

record of PSC concerning KAS combined examination of 1995 and investigation of the matter by CBI regarding pilferage and tampering of

answer sheets/scripts is not refuted. Seeking directions in the matter of investigations as referred above, is left open by the High Court in writ

proceedings. Under order dated 13.09.2000 of CJM, Srinagar, the Secretary to PSC is under directions to hand over the required documents to

one N.S. Yadav, Inspector CBI, the Investigating Officer of FIR No.RC2 (S) 2000SIU XVI U/Ss 120B read with 280 RPC and 380 RPC, the

case registered in connection with pilferage, tempering and theft of answer sheets of the examines of the KAS Combined Service Examination of

1995. Chief Judicial Magistrate, Srinagar has directed the P.S.C. to comply with this order. When this order after service on the Secretary was not

complied with the Inspector, Investigating Officer filed another application before CJM, Srinagar for appropriate orders on the plea that the

investigation is being unduly delayed without any valid or justified reason on the part of PSC, who fail to produce the record as directed by the

court. On this application CJM, Srinagar on 20.09.2000 while recording the presence of counsel Mr. G. AM directed notice for personal

appearance of the Secretary PSC to explain why the record/documents have not been made available to the CBI.

Obviously the two orders passed one after another, have been issued at the instance of the Investigating Officer of CBI entrusted with

investigation of pilferage, theft and tampering of answer sheets/scripts of J and K KAS Combined Service Examination of 1995. These orders are

fully covered by and fall within the confines of law. As the production of answer sheets and record for the purpose of investigation is considered

necessary, the CJM, Srinagar has issued a summon/requisition directing PSC through its Secretary, requiring him to produce/hand over the

documents to CBI Investigating Officer. Since the Secretary failed to comply with requisition and honour the order to produce/allow CBI to collect

the record/documents, he is directed to appear and explain vide the second order. These orders/steps are covered by enabling provisions of

Sections 94/95 of Chapter 7 of the Cr.P.C. In case any restriction(s) has been placed by the High Court while giving directions for investigation of

the case by CBI of subsequent thereto in writ jurisdiction, the Public Service Commission ought to have approached the High Court in the very

writ proceedings rather than approaching the court in these 561A Cr.P.C. proceedings. Mr. G, Ali submits that the writ proceedings are pending

before the court. To bypass and sideline the forum seized of the matter in writ proceedings and to rush to court with 561A Cr.P.C. petition, in the

facts and circumstances of this case, is wholly illadvised. No circumstances are brought to the notice of the court to show that exercise of powers

u/s 561A Cr.P.C. in any case are required to be exercised to prevent any abuse of process of law or otherwise to secure the ends of justice. Such

powers cannot be exercised to infringe/contravene the express provisions of the code or to interfere with directions in pending writmatter by the

High Court.

The order of Addl; District and Session Judge, dismissing the revision as barred u/s 435 (4a) Cr.P.C. in terms gives effect to the express bar

created in exercise of revisional jurisdiction in the matter of interlocutory orders passed in the proceedings. The purpose of putting embargo on the

exercise of powers of revision in relation to interlocutory orders within the meaning of Section 435 (4 A) Cr. P.C. is to bring about the expeditious

disposal of the case finally. The order/direction to produce the documents before an Investigating Officer in a regular registered criminal case and

thereafter on failure to comply with this direction, another order/discretion to the person having custody of control over record to appear in person

to explain the position are obviously intermediate orders. The petitioner is not likely to be prejudice as the Public Service Commission the

aggrieved party can challenge it, once it assumes finality. In my opinion the order (s) under challenge when considered in relation to the particular

purpose and context in which they have been passed assume interlocutory character. Once so, such order (s) is not amenable to exercise of

revisional jurisdiction. Viewed thus the order passed by the District and Session Judge is not in violation of law. It does not suffered from

jurisdictional error and is not legally infirm. In result the petition is dismissed.