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2007 DIGILAW 104 (JK)

Jagdish Chander Sharma v. State

2007-06-06

NISAR AHMAD KAKRU

body2007
1. Heard. Admit. This writ petition filed by one Shri Jagdish Chander Sharma seeking three reliefs is taken up for final disposal which owes its origin to the newspaper reports alleging tampering with the Holy Shiv Lingum at Shri Amarnathji Cave. Prayer clauses (a) and (b) of the writ petition are extracted seriatim: "(a) Writ in the nature of Mandamus or any other appropriate writ, order or direction the official respondents be commanded not to interfere in the original shape of the holy emblems of lord Shiva which include the holy Amarnathji cave itself, the pair of pigeons and the Shivlingum; (b) Writ of Mandamus commanding the respondents not to tamper with the holy emblems of lord Shiva which include the holy Amarnathji cave itself, the pair of pigeons and the Shivlingum in any manner whatsoever and not to form artificial emblem including the Shivlingum during the present Yatra or any other future Yatras even if the Shivlingum is not formed naturally." 2. Pleadings being the basis for drawing the conclusion, be it for or against grant of relief, reply filed in the writ petition by Shri Amarnathji Shrine Board Respondent 4 herein (Shrine Board for short), assumes significance wherein it is averred that there has been no tampering with the natural formation of Holy Shiv Lingam. Cumulative effect of the averments contained in the reply is that no stone is left unturned by the Shrine Board to ensure protection of the Holy Shiv Lingam as also of the pair of pigeons. In view of the stand so disclosed, I find no impediment in granting the aforementioned reliefs. Accordingly there shall be a direction to the respondents to take all necessary measures whatever required to protect and safeguard the Holy Shiv Lingum besides the pair of pigeons. 3. This brings me to the prayer contained in relief (c) of the writ petition which reads: "(c) Writ of mandamus commanding launching the prosecution for having desecrated the holy emblem of lord Shiva Shri Amaranthji cave especially the holy Shivlingum." The relief sought gives rise to a very delicate and sensitive question which may be summarized: "Whether the Holy Shiv Lingum was tampered with" 4. In furtherance of an endeavour to have the question answered in the affirmative reliance is placed on press cuttings divulging writing of a communication by Raj Bhawan Development Commissioner, Shri I. C. Jandial for procurement of dry ice to form an artificial Shiv Lingum. The allegation is denied by the Shrine Board and it is averred that dry ice was brought from Delhi for bringing down the temperature in the cave on the advice of the experts and not for the formation of Shiv Lingam. Dealing with the allegation of artificiality of the Shiv Lingam attributed to the Shrine Board, again on the basis of the press cuttings, the allegation is vehemently refuted. Apart from the above said denial by the Shrine Board there is something more effectively debasing the allegations traceable to the fact that the press cuttings were taken cognizance of by His Excellency, the Governor of Jammu & Kashmir, who without losing any time appointed a "One Man Commission of Inquiry" (for short Commission) consisting of Retired Mr. Justice K. K. Gupta. The terms of reference of the Commission spelt out in the Notification dated 29th of June, 2006 may be noticed: "The Commission so appointed shall: (a) inquire into the aforesaid allegations; (b) fix responsibility, if any, for tampering with the Holy Ice Lingam; and (c) make suggestions for preventing such events in future." The Commission has conducted the inquiry and has submitted its final report with a definite finding that no tampering whatsoever had ever occurred with the Holy Shiv Lingum. Answering the allegation of dry ice having been brought from Delhi and used for the formation of alleged artificial Shiv Lingum, the Commission held that it had nothing to do with the formation of Shiv Lingum but it was only to keep the area cool. The report is also categoric to the effect that Shrine Board had played no role in formation of Holy Shiv Lingum. It is relevant to notice here that the report of the Commission has become public on 26.08.2006 and a copy of the report was made part of the reply by the Shrine Board but has gone unassailed. I may be failing in my duties if I do not notice faithfully what transpired during the course of hearing. In this behalf it needs to be noticed that Mr. I may be failing in my duties if I do not notice faithfully what transpired during the course of hearing. In this behalf it needs to be noticed that Mr. M. M. Iqbal, learned counsel for the petitioner, when faced with the query as to how could he dispute the finding returned by the Commission in absence of having challenged the same before the competent forum, he laid a motion for amendment which was dismissed, for, it was late in the day. I say so because the arguments were concluded by then. Needless to say that dismissal of amendment application shall not close the option of the petitioner to challenge the Commissions report, subject to availability of cause and just exceptions. 5. Reverting to the controversy it is crystal clear that there are two sets of evidence available before the Court, one filed by the petitioner, the other by the Shrine Board. The petitioner relies on the press cuttings and compact disc. Much emphasis was laid by Mr. M. M. Iqbal on the compact disc to contend that it supports the press cuttings. Assuming it to be so, with what has it to be compared with to come to a conclusion that Shiv Lingam did not conform to the natural one. Admittedly, it is not the case of the petitioner that the press cuttings and the compact disc describe the natural Shiv Lingam as well. Thus appearance of the alleged artificial Shiv Lingam in the press cuttings and the compact disc no way help the petitioners case because nothing is brought to the notice of the Court which would give at least graphic account of the natural Holy Shiv Lingam for purposes of comparison. Another difficulty for the petitioner is that the allegation of tampering reported in the newspaper emanates from the statements of the pujaries. Who are those pujaries, particulars are wanting, obviously, no credence can be attached. 6. Examining the matter from any angle, I am of the considered opinion that the material available before the Court does not at all make out a case for a direction from the Court for prosecution of the respondents. Apart from that it has to be borne in mind that the police machinery is the creation of the statute and every person who has a cause to allege commission of an offence has a right to approach the said machinery. Apart from that it has to be borne in mind that the police machinery is the creation of the statute and every person who has a cause to allege commission of an offence has a right to approach the said machinery. There being no dispute that the petitioner is practicing and professing Hinduism, obviously if he feels that Darshan is an integral part of his faith and has been breached which constitutes an offence, appropriate remedy for him is to approach the police. Suffice it to say that writ petition is not the remedy. Relief for prosecution is refused. 7. In the backdrop of what has been stated above, this petition shall stand disposed of along with all connected CMPs.