HC rejects ED plea to add charges in JKCA scam case

The Jammu and Kashmir High Court on Friday rejected a petition filed by the Enforcement Directorate seeking addition of charges related to receipt and concealment of stolen property in a case linked to the alleged Jammu and Kashmir Cricket Association fund scam.

Justice Sanjay Parihar, however, set aside a trial court’s finding that the Enforcement Directorate (ED) lacked ‘locus standi’ to move such an application, but held that the substantive prayer for invoking sections 411 (dishonestly receiving stolen property) and 424 (dishonest or fraudulent removal or concealment of property) of the Ranbir Penal Code (RPC) lacked merit based on the material currently available.

The anti-money laundering probe agency had challenged an order dated March 22 passed by the Chief Judicial Magistrate (CBI cases), which dismissed its application seeking the incorporation of additional charges under sections 411 and 424 of the RPC into the primary case being prosecuted by the CBI.

The ED contended that although the CBI filed the primary chargesheet under sections 120-B (criminal conspiracy), 406 (criminal breach of trust) and 409 (criminal breach of trust by a public servant) of the RPC, the material gathered during the probe disclosed sufficient grounds to frame charges for receiving and concealing stolen property as well.

Refusing to add the charges at this stage, the court observed that the accusations emerging from the CBI chargesheet were essentially founded upon alleged criminal misappropriation and breach of trust allegedly committed by the accused people.

“The material presently available does not disclose a distinct receipt or retention of stolen property by the respondents in the capacity contemplated by that provision. Their alleged acts form part of the principal transaction of conspiracy, misappropriation and criminal breach of trust itself,” the 29-page order said.

The High Court said that mere movement of funds through different accounts in furtherance of the alleged conspiracy cannot justify addition of a charge under Section 411 of the RPC.

However, the court clarified that setting aside the trial court’s order regarding the ED’s lack of locus standi means the agency was within its rights to bring omissions to the court’s notice and also that the rejection of the plea would not prevent the trial court from exercising its powers under Section 216 of the Code of Criminal Procedure (CrPC) to alter or add charges if fresh evidence emerges during the course of the trial.

“Should any material emerge during the course of trial which prima facie discloses commission of an offence under sections 411 or 424 of the RPC, or any other penal provision, it shall remain open to the trial court to exercise its power of alteration or addition of charge, strictly in accordance with law,” the order said.

The ED case is based on an FIR filed by the CBI, which booked former Jammu and Kashmir Cricket Association (JKCA) office-bearers, including general secretary Mohammed Saleem Khan and treasurer Ahsan Ahmad Mirza. The CBI later filed a chargesheet in 2018 against former chief minister Farooq Abdullah, Khan, Mirza, as well as former JKCA treasurer Mir Manzoor Gazanffer Ali and former accountants Bashir Ahmad Misgar and Gulzar Ahmad Beigh for the “misappropriation of JKCA funds amounting to Rs 43.69 crore” from grants given by the Board of Control for Cricket in India (BCCI) to promote the sport in the erstwhile state between 2002-11.

The ED said its probe found that JKCA received Rs 94.06 crore from the BCCI in three different bank accounts during financial years 2005-2006 to 2011-2012 (up to December 2011).

In February 2020, the ED attached assets worth Rs 2.6 crore of Mirza and Gazanfer, a member of the finance committee of the JKCA, as the agency alleged that Mirza transferred huge amounts into his personal bank accounts, and the money was further transferred or withdrawn in cash.

“Out of the laundered amounts, Rs 1.31 crore was received by Gazanffer, who was a member of the finance committee of the JKCA between 2006 and 2009,” the ED claimed, adding that the committee was arbitrarily constituted by Abdullah, the then-president of the JKCA.

The two “opened a personal bank account” in their joint names with Jammu and Kashmir Bank, and crores of funds belonging to the JKCA were transferred into it, the agency alleged.

These funds were either withdrawn in cash or transferred to other bank accounts, including the bank account of Mirza’s firm, it added.

In 2011, Mirza was elected JKCA general secretary and Farooq Abdullah its president.

During the period, JKCA funds were continuously laundered, the ED alleged.

“From 2004 till March 2012, Mirza continued as the authorised signatory in the bank accounts of JKCA,” it said.