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2013 DIGILAW 306 (JK)

Uzma Qureshi v. Chief Secretary

2013-05-14

ALI MOHAMMAD MAGREY, M.M.Kumar

body2013
Per Magrey, J. 1. This petition, filed in public interest, inter alia, seeks directions on the respondents to consider recommendation of the State Human Rights Commission dated 19.10.2011 and for reopening / reinvestigation of FIR no.10/1991, Police Station Tregam, through a special investigation team. 2. On 07.05.2013, when the matter came up for consideration before us, learned counsel for the petitioners was asked to convince the Court as to the maintainability of the petition, particularly in context of the question whether the petitioners could seek implementation of the recommendations made by the State Human Rights Commission (hereinafter referred to as `the Commission'). The learned counsel sought time to address the Court on the aforesaid issue. The matter was, accordingly, adjourned and ordered to be posted on 08.05.2013. 3. It was also felt necessary to seek assistance of the learned Advocate General. Accordingly, Mr. Shah, learned Dy. AG, was required to ensure availability of the learned Advocate General to state the stance of the State in the case on the next date. 4. The case was again taken up on 08.05.2010 and, after hearing the learned counsel for the petitioner and the learned Advocate General, orders were reserved. 5. Mr. Imroz, learned counsel for the petitioners, in response to the query posed by the Court has addressed his arguments on the locus of the petitioners to file the PIL and, in order to buttress his arguments, has produced photocopies of the judgments of the Apex Court in Sheela Barse v. Union of India, JT 1988 (3) 15; Chairman Railways Board v. Chandrima Das, 2000(2) SCC 465 ; Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762 ; Assistant Collector of Customs, Bombay v. L. R. Malwani, AIR 1970 SC 962 ; Noida Entrepreneurs Association v. Noida, AIR 2011 SC 2112 ; Udai Shankar Awasthi v. State of UP, [Criminal Appeal nos. 61 & 62 of 2013, decided on 09.01.2013]; Vineet Narain v. Union of India, (1998) 1 SCC 226 ; and Rajesh Das, IPS v. Tamil Nadu SHRC, 2010 (5) CTC 589 . We have gone through these judgments. These relate to the locus of the petitioners to file the PIL, not on the maintainability of the petition. 6. Mr. Qadri, learned Advocate General, in his arguments has taken two preliminary objections to the maintainability of the petition. We have gone through these judgments. These relate to the locus of the petitioners to file the PIL, not on the maintainability of the petition. 6. Mr. Qadri, learned Advocate General, in his arguments has taken two preliminary objections to the maintainability of the petition. His first submission is that the reliefs prayed for in the writ petition do not fall within the ambit and scope of PIL, inasmuch as such reliefs cannot be granted by way of mandamus. The learned Advocate General, in this behalf, has referred to Section 19 contained under Chapter IV of the Jammu and Kashmir Protection of Human Rights Act, 1997. It may be apt to mention here that the aforesaid Act has been enacted to provide for the constitution of a Statute Human Rights Commission and Human Rights Court for better protection of human rights and for the matters connected therewith or incidental therto. Section 18 of the Act provides for inquiry into complaints and Section 19 provides for steps after inquiry. Section 19, in so far as relevant for the present purpose, for facility of reference, is extracted hereunder: "19. Steps after inquiry: The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely:-- (1) Where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights by a public servant, it may recommend to the Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons; (2) Approach the High Court for such directions, orders or writs as the court may deem necessary; (3) Recommend to the Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary. (4) ................ (5) the Commission shall send a copy of its enquiry report together with its recommendations to the Government or authority and the Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission; (6) ............." Referring to Sub-section (2) of Section 19, as quoted above, Mr. Qadri submitted that the said provision of law makes it competent for the Commission to approach the High Court for seeking such directions, orders or writs as the Court may deem necessary. He further submitted that the Commission in its wisdom has thought it not a fit case to approach this Court, but has, instead, made recommendations to the Government as contained therein in terms of Sub-section (5) of Section 19 of the Act. He further submitted that the recommendations so made by the Commission are under active consideration of the High Level Committee of the Government and, in fact, the date for further proceedings is fixed for 14.05.2013. In light of the above, Mr. Qadri, learned AG, submitted that there is no scope for the petitioners to file the present petition. Consequently, he submitted that the petition is not only incapable of maintenance, but also premature. To buttress his arguments, Mr. Qadri has relied upon and cited the Apex Court judgments in Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768 ; Virender Prasad Singh v. Rajesh Bhardwaj, (2010) 9 SCC 171 ; and Jakia Nasim Ahesan v. State of Gujarat, AIR 2012 SC 243 . 7. In relation to the second prayer made in the PIL for reopening / reinvestigation of FIR no.10/1991 and appointment of a special investigation team, Mr. Qadri submitted that, in the facts and circumstances of the case, the investigation of the case was closed as untraced and a report thereabout was forwarded to Judicial Magistrate concerned under Section 173(2) of the Code of Criminal Procedure. However, the learned Magistrate in exercise of the powers vested in him, has not accepted the closure report and has issued notices to the complainant for adducing evidence so as to reach at a just and proper conclusion for issuing directions for reopening / reinvestigation or otherwise of the case. 8. In view of the statements made at the Bar by the learned Advocate General, which are taken on record, and in light of the fact that the recommendations made by the Commission are under active consideration of the Government, coupled with the fact that the concerned Magistrate is seized of the matter whether or not to order reopening / reinvestigation of the FIR, we are convinced that this petition is not only incapable of being maintained, but is also premature. 9. 9. We, accordingly, dismiss the PIL alongwith the connected CMP. However, we direct the respondent State to ensure that monetary relief, as recommended by the Commission, is paid to the victims in question without any further delay.