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2011 DIGILAW 123 (JK)

Habibullah Khan v. State of J&K & Ors.

2011-03-23

FAKKIR MOHAMED IBRAHIM KALIFULLA

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1. This writ petition has been preferred by Habibullah Khan-father of the deceased, namely, Naazma Bano who was about 18 years of age, with a prayer for issuance of mandamus directing the respondents to constitute a team of Officers of Crime Branch, Headed by Superintendent of Police, Crime Branch to hold the re-investigation in relation to the alleged death of the deceased-Naazma Bano, daughter of the petitioner. It has been further prayed that 3rd respondents be directed to submit the case diary along with the Post-Mortem report of the de­ceased-Naazma Bano. 2. When this writ petition was initially taken up for hearing, notice was issued to the respondents returnable within three weeks and in the meantime, Investigat­ing Of ficer was directed to file his status report regarding the course of investigation taken in case FIR no. 39/2009. Subsequently, when the above said order was not complied with, vide order dated 11.03.2011,3rd respondent - Investigating Officer was directed to appear in person, along with the case diary. Today when this case was taken up, Mr. Magray, learned AAG, placed case diary before this Court and Investigating Officer is also present. 3. The grievance of the petitioner is that his daughter-Naazma Bano who was about 18 years of age was exploited by some persons residing in the same locality who were extending threats to her to commit illegal act with them which she refused. Thereafter, the said culprits started exploiting her and managed to take some obscene photographs. It is further stated that one fine morning when his daughter was alone in the house she consumed poison and thereafter she was hospitalized, where finally she succumbed to death. A case was registered with the Police Station Panzala as FIR No. 39/2009 under Section 309 RFC. It is further stated that three persons, namely, Mohammad Ashraf s/o Gh. Mohammad Khan R/o Naribal, Ghulam Rubani s/o Gh. Mohammad Khan R/o Naribal and Ghulam Jeelani s/o Gh. Mohammad Khan R/o Katroo Naribal, were found responsible and on arrest one Gh. Rubani confessed that he had purchased a photograph for Rs. 500/- which was taken in a marriage ceremony and with which he tried to exploit the deceased-Naazma Bano. 4. The further grievance of the petitioner is that the then investigating Officer deliberately suppressed the Post-Mortem report and has also not fairly investigated the matter and has given a clean chit to the real culprits. 500/- which was taken in a marriage ceremony and with which he tried to exploit the deceased-Naazma Bano. 4. The further grievance of the petitioner is that the then investigating Officer deliberately suppressed the Post-Mortem report and has also not fairly investigated the matter and has given a clean chit to the real culprits. He, therefore, seeks re-investigation of the case by Crime Brach, so that the real culprits are brought to book. Mr. Magray, learned senior AAG who presented the case diaries fairly stated before the Court that there is no Post-Mortem report on record. However, he attempt to state that post-mortem was not conducted, inasmuch as petitioner had made a statement in writing not to conduct the post-mortem on the deceased-Naazma Bano. 5. I have considered the respective submission of learned counsel for the parties and perused the record. 6. At the very out set, it cannot be accepted that the post-mortem was not conducted on the mere application of the petitioner, namely, the father of the deceased. The cause of death is a prime factor for proceeding with the prosecution on the registration of the FIR. The 3rd respondent cannot be permitted to take a stand that the post-mortem was not conducted at the request of the petitioner-father of the deceased. 7. In such circumstances, the contention of the learned counsel for the peti­tioner that the investigation as conducted by the 3rd respondent was not in accordance with law, merits acceptance. On being asked, learned senior AAG also stated that there is an independent investigating agency -Senior Superintendent of Police Crime Branch, Kashmir, who can be entrusted to re-investigate the matter, so that the real culprits are not allowed to escape from the clutches of law. 8. In these circumstance, the 2nd respondent -Director General of Police, is directed to transfer the case relating to the FIR No.39/2009, registered with the Police Station Panzala to Senior Superintendent of Police Crime Branch, Kashmir, who shall thereafter proceed with the further investigation in accordance with law and under the supervision of the concerned Judicial Magistrate. The Senior Super­intendent of Police, Crime Branch, Kashmir shall proceed with the further investi­gation and conclude the same expeditiously, preferably within a period of three months from the date of receipt of the case from the Police Station, Panzala to his office. 9. The Senior Super­intendent of Police, Crime Branch, Kashmir shall proceed with the further investi­gation and conclude the same expeditiously, preferably within a period of three months from the date of receipt of the case from the Police Station, Panzala to his office. 9. Registry to provide a copy of this order to both learned counsel for the parties. 10. Writ petition shall, accordingly, stand disposed of.