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J&K High Court · body

2007 DIGILAW 55 (JK)

Hans Raj Parihar v. State

2007-04-25

HAKIM IMTIYAZ HUSSAIN

body2007
1. These two criminal transfer applications have been filed under section 526 of the Code of Criminal Procedure seeking transfer of criminal challan titled State v. Hans Raj Parihar and six others, under sections 364, 302 and 102-B RPC from the court of learned Sessions Judge, Srinagar to any other criminal court al Jammu. 2. Criminal transfer application No. 5 of 2007 has been filed by one Bahadur Ram Kaith S/o Malik Ram R/o Ward No. 13, Bishna, Jammu through his wife Smt. Pyari Devi while as cr. transfer application No. 7/07 has been filed on behalf of Hans Raj Parihar S/o B.C. Parihar R/o Palmar tehsil Kishtwar, district Doda through his wife Smt. Sudesh Parihar. 3. The brief facts relevant for the disposal of these petitions are as under:- On 14.12.2006 one Gh. Qadir Padder S/o Gh. Rasool R/o Larno Kokernag, Anantnag lodged a written report in Police Station Batmaloo stating therein that on 8.12.2006 Abdul Rehinan Padder S/o Gh. Rasool Padder R/o Larno Kokernag, Anantnag went missing from Batmaloo and since then he was not traceable. Consequently a missing report vide daily diary report no. 21 dated 14.12.2006 was diarized and a missing file was opened in police Station Batmaloo, Srinagar. While searching for the missing person, it revealed that said Abdul Rehman Padder possessed a cell phone Nokia 2600 model bearing IMEI NO. 357054000874988 with BSNL SIM card bearing Cell No. 941901 156. These details were forwarded to the concerned service provider wherefrom, it was found that a BSNL SIM bearing Cell No. 9419599929 registered in the name of one Bashir Ahmed Bhat S/o Sonaulla Bhat R/o Watnoo Tangmarg was being used in the cell phone of the missing person. When enquired upon, Bashir Ahmad Bhat informed that his BSNL SIM bearing cell no. 9419599929 was being used by one Abdul Rashid Wagay @ Kuabli S/o Abdul Gani Wagy R/o Kathpora Hajan Sonawari presently residing in Room No.2 Tourist Hotel Kohankhan Dalgate Srinagar. As the mobile phone of the missing person was traced, it raised the suspicion that the missing person had been abducted with intention to murder him. Accordingly, a case FIR No. 06/07 U/s 364 RPC was registered at Police Station Batmaloo, Srinagar. 4. As the mobile phone of the missing person was traced, it raised the suspicion that the missing person had been abducted with intention to murder him. Accordingly, a case FIR No. 06/07 U/s 364 RPC was registered at Police Station Batmaloo, Srinagar. 4. On the basis of the statements recorded and the evidence collected during the course of investigation of the case, it surfaced that in furtherance to a criminal conspiracy hatched by Hans Raj Parihar Ex. SP Ganderbal (petitioner in Cr. T.A. No. 7 of 2007) and other co-conspirators (including Bahadur Ram petitioner in Cr.T.A. No. 5 of 2007), Abdul Rehman Padder S/o Gh. Rasool Padder R/o Larno Kokernag Anantnag (a carpenter by profession) was abducted on 8.12.2006 from Batmaloo Srinagar and was subsequently murdered at Waskoora Ganderbal on the intervening night of 8th and 9th February, 2006. The abductee was dubbed as a foreign terrorist, "Abu Hafiz R/o Multan, Pakistan" and a case FIR No. 133/06 U/s 307 RPC, 7/27 Arms Act was registered in Police Station, Ganderbal in this regard. 5. From the investigation of the case, offences under sections 302, 364 RPC read with section 120-B RPC were prima-facie found established against 8 persons including the two petitioners of the present petitions. 6. In Cr. TA No. 05/07 filed on behalf of Bahadur Ram Kaith it is stated that the petitioner was posted as Dy. SP (Operations) SOG, he had been involved in various counter-insurgency operations and his personal devotion towards his duty and maintaining peace etc. while containing militancy, has been a major factor for ringing a situation to near normalcy in Ganderbal area of Kashmir province. Because of the active involvement in counter-insurgency operations, he was also an eyesore for the militants both underground and their over-ground sympathizers and anti national elements, who are on parole to implicate the petitioner in false and frivolous allegations to cause damage to his service and reputation. In this regard even attempts have been made, number of times, to physically eliminate the petitioner. It is further stated in the petition that FIR No. 6/07 narrated a false and frivolous story of alleged custodial killing of one Shri Abdul Rehman Padder. Respondent No. 2 (SHO Police Station Batmaloo, Srinagar) after completing the formalities has filed the charge sheet No. 4 dated 28.2.2007 before the Court of Ld. It is further stated in the petition that FIR No. 6/07 narrated a false and frivolous story of alleged custodial killing of one Shri Abdul Rehman Padder. Respondent No. 2 (SHO Police Station Batmaloo, Srinagar) after completing the formalities has filed the charge sheet No. 4 dated 28.2.2007 before the Court of Ld. Chief Judicial Magistrate, Srinagar who fixed the date in the said case before the court of learned Sessions Judge, Srinagar on 8.3.07. He, alongwith other co-accused persons, has been lodged in Central Jail, Srinagar which jail is occupied with by highly dreaded militants. The petitioner further states that in view of the present scenario of hostility and antagonism in the valley, the petitioner seeks transfer of the criminal challan from the Court of learned Sessions Judge, Srinagar for its trial before any other court of competent jurisdiction either at Jammu or at any other place which the Honble Court, in the facts and circumstances of the case deems fit and proper. 7. Petitioner in Cr.TA No. 7/07 states that Shri Gopal Sharma, DGP, S.M. Sahai, IGP Kashmir Zone, Srinagar and Farooq Ahmed DIG CKR Srinagar, being the immediate superior officers of the petitioner were not pulling on well with the petitioner for quite some time for the reasons best known to them. It is further stated that the petitioner rendered more than 13 years unblemished service in Kashmir against various posts during the time when the militancy was at its peak and for his meritorious, dedicated, brave and honest service, the petitioner has been decorated and awarded various Police Medals, commendations and letters of appreciation. The petitioner states that the print and electronic media has already held the trial of the petitioner and given its verdict of guilt against him. The State Chief Minister has been making self contradictory statements both in the Assembly as well as in press release because of the political pressure mounted on him by the political parties. Both the petitioners have sought transfer of the criminal challan from the court of Sessions Judge, Srinagar to any other Court at Jammu on two main grounds; firstly that no legal service of advocate of the choice of the petitioner is available to the petitioners at Srinagar, secondly that the immensely hostile and surcharged atmosphere has been created against them in the entire Kashmir valley in the name of alleged innocent killings by Ganderbal Police. 8. The State has resisted these petitions. It is stated that the grounds taken by the petitioners for the transfer of criminal challan from Srinagar is unfounded. The respondents state that the subordinate courts as well as the Srinagar Wing of the High Court has worked in an atmosphere when the militancy was at its peak and presently there is a see change and the argument that prevailing atmosphere is not conducive for a fair trial is a without any force. So far as the plea regarding non-availability of services of a counsel is concerned, the respondents state that three of the accused persons stand already represented by the defence lawyers who happen to be the members of the Kashmir Bar Association. Thus if the other accused persons facing trial in the same case, have the services of the defence counsel available the plea of the petitioners not getting the services of an Advocate at Srinagar seems to be imaginary. The respondents have further stated that the petitioners have deliberately avoided engaging an Advocate to create an impression that no legal service is available but no such atmosphere is prevailing in Srinagar as to render the engagement of the defence counsel impossible for the petitioners. The respondents state that the accused arc lodged in Srinagar Central Jail which is duly protected by the security agencies and the security of the animates is maintained as per the requirements. 9. Heard. I have considered the matter. The petitioners in both the cases have prayed for transfer of the said challan from the court of Principle Session Judge, Srinagar to any other court at Jammu or outside the valley on two main grounds; firstly that no legal service of advocate of the choice of the petitioners, is available to them at Srinagar and that no advocate of their choice from Jammu is willing to accept the brief of the petitioners and conduct the defence at Srinagar; secondly that because of the immensely surcharged and hostile atmosphere created in the valley, a fair trial is not possible at Srinagar. 10. Mr. Ashok Parihar learned counsel appearing for the petitioner Hans Raj Parihar in Cr. 10. Mr. Ashok Parihar learned counsel appearing for the petitioner Hans Raj Parihar in Cr. TA 7/07 would refer to various press cuttings filed with the petition and would submit that baseless, false and frivolous allegations have been leveled against his client due to which atmosphere in the entire Kashmir valley has become surcharged against the petitioner which has resulted into large scale protest, band, darhnas and slogans against the petitioners with threat to his life from militant outfits as also from the politicians and locals. According to the learned counsel the print and electronic media has already held trial of the petitioner and even the Chief Minister has made statement against the petitioner in the Assembly as well as in the Media. The learned counsel has stated that on 17.2.2007 when the petitioner on the expiry of his police remand was produced before the court of ld. 2nd Addl. Munsiff JMIC, Srinagar, the petitioner made an application before the said ld. Magistrate praying that in view of the threat perception to the petitioner at the hands of the militants and other outfits he may be lodged in a safe judicial custody in any jail in Jammu i.e. outside Kashmir province. The ld. Magistrate on the application directed that the petitioner be provided a separate room in the jail. 11. The petitioner at the time of his lodgment in the Central Jail at Srinagar was physically attacked with rods and sticks and mercilessly beaten by the jail inmates comprising of local militants and the under trial prisoners. This fact has been denied by the Sr. Supdt. Central Jail, when some independent secret agencies sought the confirmation. A local daily carried this report in its issue dated 5lh March 07, cutting whereof is also attached with the petition (Annexure-F). 12. The wife/next friend of the petitioner also approached the Director General of Police, Prisons Department, J&K Jammu who instead of holding a probe into the incident and taking action against respondent no. 2, vide his office No. DG(P) DS/207/9659 dated 20.2.2007 directed the said respondent No. 2 to take all necessary measures in regard to the security of the petitioner at the Central Jail Srinagar. 13. 2, vide his office No. DG(P) DS/207/9659 dated 20.2.2007 directed the said respondent No. 2 to take all necessary measures in regard to the security of the petitioner at the Central Jail Srinagar. 13. In view of these facts, the counsel submits that it is not possible to have a fair and impartial trial at Srinagar in the Court of learned Sessions Judge where the life and liberty of the petitioner, according to the Id. Counsel is in jeopardize. The Id. Counsel further, submits that there is no lawyer available who could defend his client at Srinagar. In a supplementary affidavit filed on 2.3.07 he has given the names of about 10 advocates, 4 from Kashmir Bar Association and 6 from Jammu Bar Association who, according to the learned counsel, were approached but who declined to accept the brief of the petitioner for one or the other reason by expressing their own personal difficulties in view of the surcharged atmosphere prevailing in entire Kashmir on the alleged fake encounter killings by the police, army and para-military forces. Learned counsels, according to the petitioner, have expressed their inability to do justice to the brief besides security risk to their own life. 14. Mr. Sunil Sethi appearing for the petitioner in Cr.TA NO. 05/07 has reiterated what Mr. Parihar submitted and has in addition to it slated that the Stale Government has recently appointed a Commission of Enquiry comprising Mr. Justice M.L. Koul Rtd. Judge High Court of J&K to enquire into the alleged custodial killings in the fake encounter resulting in the death of some persons like Abdul Rehman Padder, for whom the petitioners are being charged before the learned Sessions Judge. According to the learned counsel this shows that even the Government is biased towards the petitioners and that in the circumstances the petitioners do not expect a fair and impartial trial in the Valley. 15. Ld. counsels have relied on K.C. Padi & Ors. V. CBI WP (C.RL No. 161/06) decided by the Apex Court on 4.9.06. Ld. Counsels have also placed reliance on Ab. Nazar Madni v. State of Tamil Nadu & Anor. AIR 2000 SC 2293 and Mohd. Rafiq and 4 other vs. State of J&K Cr.TA NO.2/02 decided by this court on 24.2.2002. 16. V. CBI WP (C.RL No. 161/06) decided by the Apex Court on 4.9.06. Ld. Counsels have also placed reliance on Ab. Nazar Madni v. State of Tamil Nadu & Anor. AIR 2000 SC 2293 and Mohd. Rafiq and 4 other vs. State of J&K Cr.TA NO.2/02 decided by this court on 24.2.2002. 16. Learned Advocate General, appearing for the State, has vehemently opposed the petitions for transfer of the challan from Srinagar Court to any other Court at Jammu. Ld. Advocate General would submit that the grounds taken by the petitioners for the transfer of the police challan are without any basis as the plea of non-availability of defence counsel at Srinagar is imaginary one and the same has been raised to carve out a ground for the transfer of the criminal challan. It is further stated that the accused lodged in the Srinagar Central Jail involved in the case have been given due security cover by the concerned agencies. He has relied on Baljit Singh vs. State of J&K AIR 1982 SC 1558 and Fatima Riswana v. State 2005(1) SCC 582. 17. It is well settled law, as has been held by the Apex Court in Baljit Singh v. State of J&K (Supra) that normal course of things should not be lightly interfered with and the case should be allowed to be tried by the court which has the territorial jurisdiction to try it. This court however, has got the powers under section 526 of the Cr.P.C to transfer a case from one court to another provided there are sufficient grounds to show that a fair and impartial trial is not possible or that it is expedient for the ends of justice to transfer a case from one court to another. Powers under the section may be exercised by the High Court suo moto or on the application of a party interested. Where it is on the petition of an aggrieved party, such party must show that a fair and impartial trial was not possible before the concerned court. It is not any and every apprehension that can be a ground for the transfer of a case, it should be a reasonable apprehension i.e. apprehension which the High Court considers reasonable for the accused as a reasonable person to entertain in the circumstances of the case. It is not any and every apprehension that can be a ground for the transfer of a case, it should be a reasonable apprehension i.e. apprehension which the High Court considers reasonable for the accused as a reasonable person to entertain in the circumstances of the case. Where the party has an apprehension that the local atmosphere is surcharged with an animus environment against him which is likely to effect the fairness and impartiality of the trial, and the apprehension appears to the court well founded, it will be a proper case for transfer. But the mere fact that a surcharged atmosphere exists may not by itself be sufficient to justify a transfer of the case. The atmosphere must be such which is likely to effect the fairness and impartially of the trial. Since the trial is held by a Judicial officer, the party praying for the transfer of the case, on such a ground, must show that the situation is so grave that it has effected the competence of the Judicial Officer concerned to conduct the trial impartially and fairly. Thus what is relevant for the case, is not the gravity of the situation but the fact whether the situation is so surcharged that it has effected the working of the Judicial Officer concerned too due to which he is not in a position to conduct the trial in a just and fair manner. 18. There is no material on file to show that the alleged hostile atmosphere has made it impossible even for the Sessions Judge to conduct the trial impartially. Even the petitioners have not made any such averments in the petitions. They, however, state that the atmosphere is surcharged and various political parties have given statements on the issue, the Chief Minister too has made statements in this behalf and that the matter has also been discussed in the State legislature. The petitioners have placed on file press cuttings in support of their stand. Learned counsel for the petitioners have referred to all these press reports to show that various political parties have made the case a political issue, In these circumstances according to the learned counsel, it is expedient for the ends of justice to direct transfer of the case from Srinagar to the Jammu province. 19. Learned counsel for the petitioners have referred to all these press reports to show that various political parties have made the case a political issue, In these circumstances according to the learned counsel, it is expedient for the ends of justice to direct transfer of the case from Srinagar to the Jammu province. 19. I fear the ground so raised cannot be entertained as Section 526 of the Code refers to the expediency for ends of justice and not to any expediency from a political point of view. The allegations that certain politicians or classes of the inhabitants of the area are interested in raising the issue to score their political ends or the that alleged incident has caused excitement to the people, are not sufficient for the transfer of the case. As the courts have held, no undue regard is to be shown to the abnormal susceptibilities of any section of the public, from an apprehension of ulterior consequences. Mere fact that the case has assumed political importance cannot be a ground for the transfer of a case at all. If the case is a sensational one and arouses a certain amount of public interest, comment or feeling that is no reason, in my view, why the petitioners or this court should lose faith in the trial court. 1 have seen the copies of interim orders on file and I find the trial court is proceeding in the case in the normal course and in accordance with the procedure. There is nothing on record to show that the situation is such which has made it impossible for the court to work. Nor has the trial court made such a complaint or observation in its interim orders. 20. So far the ground of non-availability of a lawyer is concerned, on this count too the petitioners do not have any case . They allege that they cannot get a lawyer at Srinagar as the atmosphere in the valley is so surcharged that the lawyers are reluctant to accept their briefs. Petitioner Hans Raj Parihar has in this behalf given list of some lawyers who according to Mr. Parihar, ld. Counsel were contacted but who have reportedly declined to accept the case. I do not find any force in the plea. Petitioner Hans Raj Parihar has in this behalf given list of some lawyers who according to Mr. Parihar, ld. Counsel were contacted but who have reportedly declined to accept the case. I do not find any force in the plea. Order dated 17.3.2007 of the trial court shows that three accused out of the eight accused persons in the challan are already represented by the counsels. Shri M. A. Dar who has appeared for accused No.3 and 5 and Sh. Sheikh Yasir, who has appeared for accused No.4. since the learned Advocates are available and willing to appear for other accused person, the ground raised in this behalf by the petitioner, appear to be without any basis. 21. Learned counsel for the petitioners placed reliance on K.C. Padhi & Ors. Case (supra) to show that the Supreme Court in a similar circumstance directed transfer of a sensational case pending in the Srinagar Court to the Court of District and Sessions Judge, Chandigarh. Perusal of the judgment of the Honble Supreme Court, shows that in a matter which was being investigated into by the CBI, a part of the criminal investigation was complete for which charge sheets were filed before learned Sessions Judge Srinagar while rest of the investigation was being monitored by this Court. The Apex Court transferred the case for trial from the Court of learned Principle Sessions Judge, Srinagar to the Court of learned Principle Sessions Judge, Chandigarh with the direction to District Judge, Chandigarh to try the cases himself or assign it to appropriate court. The Supreme Court did not apply the order on the investigation being monitored by this High Court. Perusal of the judgment of the Apex Court further shows that this was a case where both the State as well as the CBI had given their `no objection for the transfer of the case and had not opposed the prayer for the same. Learned Advocate General submits that in that case the Kashmir Bar Association had given a boycott call and had asked its members not to appear before the Court on behalf of the accused, but such is not the position in the present case as no such call has been given by the Bar Association. He further states that there is no material on file to show that the situation is such which would prevent a lawyer to appear before the Court. He further states that there is no material on file to show that the situation is such which would prevent a lawyer to appear before the Court. 22. I find due substance in the submissions of learned Advocate General. In the circumstances I do not find any force in the present petitions which are hereby dismissed.