1. On 16.08.1997 Abdul Hamid Malik son of Abdul Ahad Malik of Badargund-Ganderbal instituted a report in concerned Police Station that his brother namely Ghulam Nabi Malik had been lifted by accused Irshad Ahmad Sofi, Mohmmad Yasin Sofi and Mst. Khati on 21.06.1977 sic 1997 with help of local army unit while they were accompanied by an unknown person and till 16.08.1997 he did not get any clue regarding whereabouts of his aforesaid brother. Meanwhile on 22.06.1997 while he had gone to police station, Ganderbal he was prevented by accused Abdul Rashid Sofi constable from lodging the FIR by physically assaulting him, and asking him to go back as he would manage release of his lifted brother which did not happen whereupon he filed complaints before IGP, DIG, SSP and Dy. Commissioner of Srinagar district, one of which was endorsed to concerned SDPO also, but still then nothing happened and he started searching for his brother during which he came in contact with accused Mohammad Sultan who assured his brothers release on payment of Rs. 10,000/- but despite payment nothing happened and ultimately the dead body of his brother was recovered from Ganderbal Power Canal which was decomposed and bore signs of torture. 2. On receiving the report police registered FIR No. 173/1997 under sections 302 364, and 109 RPC and started investigations during which they claim to have prepared the recovery and injury memos alongwith map of the alleged scene of occurrence and arrested accused Muhammad Sultan Mir. The police also claim to have been informed that the local army unit of Kumaun rifles had lifted the boy which was denied by concerned Commanding Officer. Vide order No. 1447 of 1999 dated: 21.05.1999 issued by Police headquarters investigation of the case was assigned to crime branch who recommenced the same and recorded statements of witnesses under section 161 Cr.P.C. On completion of investigation they concluded that on 19.06.1997 the daughter of accused No.3 namely Jameela Akhtar informed her mother that the deceased Ghulam Nabi Malik had molested her when she went to his shop for purchasing some under-garments whereafter the deceased went to the house of 3rd accused for explaining his position where he was beaten etc. The investigation reportedly also revealed that accused No.l the brother of 3rd accused who was posted as SGCT in Ganderbal police station and had contacts with one of the police informers, the accused Mohammad Sultan Mir, organized a raid on the house of deceased on 21.06.1997 at around 9 PM and accompanied by accused 1 to 4 who were dressed in army uniform lifted the deceased and despite efforts the complainant could not have a case registered in police station in time because of the covert activities of first accused, who prevented and persuaded the complainant to get in touch with accused Mohammad Sultan Mir who was working in State Task Force but nothing happened till ultimately the dead body was recovered from power Canal of Ganderbal tied in a rope and bearing torture marks. During interrogation the accused Mohmmad Sultan Mir who became an approver in the case had his statement recorded before the competent magistrate under sec. 164 Cr.P.C on 01.09.2003 according to which the accused No.5 namely Maj. Parera of 3rd Kamanoon Rifles who was posted in Ganderbal at that time was stated to have been involved in commission of the offences and disposal of the dead body on a promise that the accused would given him Pashmina Shawl costing Rs. 60,000/-. 3. The police ultimately concluded that the deceased was tortured to death by accused persons Maj. Parera and Abdul Rashid Sofi and ultimately they instituted a case before City Magistrate, Srinagar on 27.10.2003, against accused including aforesaid Maj. Parera, Mohammad Sultan Mir, the approver and Abdul Rashid Sofi, who committed the same to Court of Sessions where it came up on 29.10.2003 only to be returned for reconsideration of committal order on the ground that learned committal Magistrate had on one hand committed the accused and on the other asked accused No:5 Maj. Parera whose presence could not be secured by police during or after investigation of the case to appear before him on 25.11.2003 for exercising the option regarding forum of trial. The case was received back in committal Court on 15.11.2003 wherefrom it was again committed to court of Sessions under a detailed order with direction to concerned Jail Officer for production of accused before Sessions Court on 16.12.2003. While doing so accused No.5 Maj. Parera was declared as an absconder. The case was received back in committal Court on 15.11.2003 wherefrom it was again committed to court of Sessions under a detailed order with direction to concerned Jail Officer for production of accused before Sessions Court on 16.12.2003. While doing so accused No.5 Maj. Parera was declared as an absconder. On 16.12.2003 when the case was taken up in the court of Sessions, the Pr. Sessions Judge concerned assigned the same to 3rd Addl. Sessions Judge, Srinagar where it was received on the same day and after proceedings on around a half a dozen dates of hearing was again remitted back to committal Court with a direction to proceed in strict accordance with Sec. 205-D of Cr.P.C arid concerned Jail officer directed to produce accused before the committal Magistrate on 05.03.2004 who vide order passed on said date required concerned authorities to hand over accused No.5 and posted the matter on 13.03.2004.Meanwhile vide order dated 09.03.2004 the case was transferred by Pr. Sessions Judge from City Magistrates Court to Chief Judicial Magistrates Court, Srinagar where proceedings recommenced on 13.03.2004 and were adjourned to come up on 20.03.2004 with the repeated direction regarding production of accused No.5 when again a similar orders was passed followed by orders dated: 05.04.2004 to 15.04.2004 when the Chief Judicial Magistrate, Srinagar issued a bailable arrest warrant against accused No.5 and sent it to one Lt. Col. Mukhtar Singh for execution. On 24.04.2004 the direction was again repeated continuously till 17.05.2004 when the arrest warrant aforesaid was directed to be executed through Director General of J&K Police. Ultimately on 10.07.2004 Chief Judicial Magistrate, again committed the case to court of Sessions in respect of accused 1 to 4 and split the same in respect of accused No.5 to be proceeded ahead in accordance with section 540(A)(2) of Cr.P.C. The case was received in court of Sessions on 19.07.2004 where from it was again assigned to 3rd Addl. Sessions Judge, Srinagar who commenced proceedings thereupon on the same date and under his order dated: 26.10.2004 again remitted the case back to the Court of Chief Judicial Magistrate, Srinagar repeating the direction to proceed in strict accordance with section 205-D and directed the matter to come up before him on 24.10.2004. On said date, Chief Jud. Sessions Judge, Srinagar who commenced proceedings thereupon on the same date and under his order dated: 26.10.2004 again remitted the case back to the Court of Chief Judicial Magistrate, Srinagar repeating the direction to proceed in strict accordance with section 205-D and directed the matter to come up before him on 24.10.2004. On said date, Chief Jud. Magistrate transferred it to the court of City Magistrate directing it come up there on 02.11.2004 on which date the matter was received in the said court who again issued coercive process for securing attendance of accused No.5 with intimation to the Chief of Army Staff, Defence Secretary and Corps Commanders of Northern command and Badamibagh Army Corps. This direction continued to be repeated one way or other till 19.03.2005 when the case was posted on 02.04.2005, but meanwhile the record was summoned by this court vide interim order dated: 30.03.2005 passed in this revision petition, appearing to have been instituted on 20.11.2004 and first listed before the bench on 24.11.2004 when proceedings commenced. Simultaneously the above mentioned petition No. 36/2004 under section 561-A Cr.P.C too appears to have been instituted in this court by the accused Maj. Parera aforesaid for quashment of the aforesaid FIR 173 of Police station Ganderbal and the committal Magistrates order dated: 11.12.2003 wherein he was declared to be an absconder. It is these two petitions which are under consideration presently for their disposal wherein the counsel for revision petitioner and the Government counsel have been heard. Mr. M. I. Qadri, appearing for petitioner Maj. Parera in the petition under section 561-A Cr.P.C has also advanced argument on his behalf. During these submissions the counsel for petitioners almost reiterated the contents of the revision petition and the petition under section 561-A Cr.P.C while as the state counsel defended both registration of FIR and the proceedings taken in the matter at different levels. The counsel for accused 1 to 4 has also canvassed their bail petition fervently on the ground that all these years right from their arrest till date, they have been languishing in Jail with no head way in proceedings which as per the counsel goes against the basic tenets of law and justice. 4. For the sake of convenience it would be appropriate to first take the petition No. 36/2004 under section 561-A purported to have been filed by Maj. 4. For the sake of convenience it would be appropriate to first take the petition No. 36/2004 under section 561-A purported to have been filed by Maj. Parera against order dated: 11th December, 2003 passed by City Magistrate, Srinagar whereunder while committing the case to Court of Sessions for the second time he has declared him as an absconder and proceeded ahead in the matter. Grounds pleaded in support of prayer for quashment of aforesaid order are that for want of statutory sanction under section 197 Cr.P.C and Section 7 of Armed Forces Special Powers Act, 1990; the initiation of criminal proceedings by institution of case in hand against him was bad because such sanction for taking cognizance of offence against him was necessary and also that without allowing him to exercise the option whether he would like to be tried by a Civil Court or Army Court, the case could not have been committed to the Court of Sessions and finally that there was no material reliable enough to rope him in, so far as the liability for commission of alleged offence was concerned etc. 5. I have heard learned counsel and considered the matter. In first instance it may be observed that the case in hand has suffered an extremely unreasonable delay basically due to petitioners failure in presenting himself before the concerned court in time which has visibly caused a lot of agony to other accused. As if that was not enough, the courts below too appear to have tossed the file from here to there even after its commitment for trial. For how he has behaved the contentions projected by petitioner to have the City Magistrates order quashed loose much of their appeal and the colour innocence that appears to have been pleaded in either an over simplification of an otherwise serious lapse on his part in obeying the law which resulted in an almost total failure of the process, or a mistaken belief that he was not amenable to legal process. Now as it is, the petitioners basic grievance against his involvement which he says does not have enough material to support it is based on a claim of total disassociation from the offence, which perhaps, given the fact that he is high ranking army officer would sound quite believable but for the statement of accused Mohammad Sultan purporting to have been recorded under section 164 Cr.P.C wherein he has given complete details of petitioners alleged nexus with the crime by stating that after being lifted the deceased boy was given into his custody and killed by him alongwith first accused Abdul Rashid Sofi by torture with connivance and aid of other accused persons. That being so perhaps it cannot be easily said that the case is totally devoid of any incriminating material against the petitioner. However, whether or not in its totality the said statement read alongwith other materials on record would be enough to frame a charge against petitioner is a question to be assessed by the trial court at the proper stage. All that can be said right now is that the petitioner has to face the incriminating statement of co-accused Mohammad Sultan, and come clean out of it to sustain his plea of innocence, and till that happens it can hardly be said that the case is devoid of materials against him which agitates against his prayer for quashment of the FIR or the case based thereupon, which in attending circumstances as aforesaid would not amount to an abuse of the process of law. 6. Almost similar is the case with petitioners contention regarding committal magistrates lack of power to take cognizance of the matter in absence of sanction under section 197 Cr.P.C and Section 7 of Armed Forces Special Powers Act, 1990 or power of police to institute the case. As a matter of fact if the petitioner seriously believed it, nothing prevented him to appear before police concerned or the committal Court and take these pleas which would obviously be disposed of on their merit. Ex-facie the consideration involved in the assessment of their substance would be as to whether or not the act attributed to petitioner would in circumstances of the case be traced to discharge of lawful duty by him as to something done towards or during its performance. Ex-facie the consideration involved in the assessment of their substance would be as to whether or not the act attributed to petitioner would in circumstances of the case be traced to discharge of lawful duty by him as to something done towards or during its performance. This too could have been considered by the Courts below more effectively as being the Courts of first instance, and by choosing to stay away, the petitioner has only deprived himself of the opportunity to present his case on this count or regarding exercise of his option regarding choice of the forum of trial as well. But due to his absence this aspect of the matter could not be considered there, and at this stage the consideration of these questions particularly the one relating to sanction for prosecution, is slightly inadequate even improper for want of a settled factual premise pertaining to facts/circumstances attending petitioners alleged involvement particularly because he has yet to have a practical chance of rebutting the allegation of his involvement or that it attracted the cover of the discharge official duty without which this question cant be effectively considered. It is surprising that the petitioner has not even cared to appear personally in this court also despite express orders dated: 18.07.2005, 18.10.2005, 11.11.2005 and 07.08.2006 which to say the least does not reflect positively on his attitude. That being so the impugned committal order purporting to have been passed by concerned Magistrate on basis of the un-rebutted materials including statement of Mohammad Sultan as aforesaid and after taking cognizance of the case does again not appear to suffer from any abuse with the result that challenge put forth by petitioner to seek quashment of the order impugned herein does not appear to succeed and accordingly the petition No. 36/2004 under section 561-A is dismissed. It may be mentioned that no challenge has been put to the procedure adopted by Judicial Magistrate during committing proceedings. 7. Before parting, however, it would be appropriate to observe that while upholding the order of City Magistrate, impugned herein whereunder the case has been committed to the court of Sessions I feel all orders passed subsequent thereto particularly those by the court of 3rd Addl. 7. Before parting, however, it would be appropriate to observe that while upholding the order of City Magistrate, impugned herein whereunder the case has been committed to the court of Sessions I feel all orders passed subsequent thereto particularly those by the court of 3rd Addl. Sessions Judge, Srinagar and consequential orders at the magisterial level are liable to be quashed as suffering from irregularity of procedure for the simple reason that in first place the committal order having been perfectly proper in given circumstances of the case and secondly that in case something wrong was found in the committal order a reference could have been made by the concerned Sessions Judge to this court in exercise of revisional power and the matter could have been settled long back. Instead of doing that the Sessions Court remitted the matter back again and again for reconsideration of committal court which necessarily implied a review of its earlier order i.e. order impugned herein which could be inappropriate for want of enabling provision. Propriety would have demanded that in case the Sessions Judge differed with the order passed by the committal Court or found it wanting on any legal count it should have exercised its revisional power and if finding that it required to be modified or overset made a reference to the High Court in terms of Sec. 438 Cr.P.C which does not appear to have been done. For that reasons the orders purporting to have been passed in the matter by Court of Sessions and orders consequential thereupon are hereby quashed, with the result that the proceedings in the case relegate back to 11.12.2003 when the committal Court declared the petitioner Maj. Parera as absconder and committed the case to the court of Sessions. With this petition having been instituted and entertained on his behalf which implies his presence through counsel, he cant perhaps be deemed to be an absconder still, in the result, therefore, resort to coercive process for securing his appearance before the court of Sessions can be had only after he fails to appear before that Court. It may, however, be observed that all the pleas relating to the requirement of sanction and exercise of option under procedural law etc. shall be available to petitioner before the trial court along with his contention regarding sufficiency of material on record to incriminate him. 8. It may, however, be observed that all the pleas relating to the requirement of sanction and exercise of option under procedural law etc. shall be available to petitioner before the trial court along with his contention regarding sufficiency of material on record to incriminate him. 8. That takes me to revision petition No. 48/2004 and bail application No. 48/2005 filed by accused 1 to 4. 9. In so far as the revision petition against the order passed by 3rd Addl. Sessions Judge, Srinagar dated: 11.12.2003 on their bail application is concerned, it exfacie does not appear to be maintainable for the simple reason that bail order is not a final order in the sense of being amenable to interference in exercise of revisional jurisdiction, and being directed against an interlocutory order as such it attracts the bar created in sub-Sec. (4) of Sec. 435 Cr.P.C and is liable to be dismissed, particularly because petitioners herein have already filed a bail application in this court under section 498 Cr.P.C which is hereby taken up for consideration. 10. In so far as the bail plea of accused No. 1 to 3 is concerned, the first relevant factor that appears to attract attention is their prolonged detention in custody without trial or even a tangible headway in committal proceedings, which as already said have suffered lot of avoidable delay while petitioners have been languishing in jail without trial. At the same time, however, apparently their cases do not appear to be at par with each other. While the accused Abdul Rashid who has been a head constable in concerned police station is accused of direct involvement in alleged killing of the deceased alongwith Maj. Parera, the level of accusations as against other two appears to be somewhat different. However, since charge against them is yet to be considered by the trial court which hopefully would be done when the matter comes before it, I would prefer to leave final disposal of the bail plea for trial Court only. However, in given circumstances as catalogued above the accused No. 2 and 3 namely Mohammad Yasin Sofi and Irshad Ahmad Sofi are hereby admitted to interim bail each in the amount of Rs. However, in given circumstances as catalogued above the accused No. 2 and 3 namely Mohammad Yasin Sofi and Irshad Ahmad Sofi are hereby admitted to interim bail each in the amount of Rs. 20,000/- to the satisfaction of Registrar (J) of this Court, with personal recognizance bonds in the like amount till the matter is taken up by the trial court for further proceedings who would pass requisite orders thereupon alongwith the bail prayer of accused Abdul Rashid and Mohammad Sultan Mir. 11. All the matters stand accordingly disposed of with a direction that the case shall come up before the Principal Sessions Judge, Srinagar on 9th June, 2007 for further proceedings in terms of committal Magistrates order: 26.10.2004. On appointed date the in-custody-accused be produced before Sessions Court in proper custody while others including Maj. Parera aforesaid shall appear on their own. Matter to come up before the court of Sessions at Srinagar on 09.06.2007. Records be sent down alongwith a copy of this order. Appropriate date be intimated to Public Prosecutor through Mr. M. A. Rathore, AAG.