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2015 DIGILAW 480 (JK)

Imtiyaz Ahmad Sofi v. State of J&K

2015-09-08

HASNAIN MASSODI, N.PAUL VASANTHAKUMAR

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JUDGMENT : Hasnain Massodi, J. 1. Petition, treated as Public Interest Litigation in view of issues raised, voices petitioner's concern for 117 killings at the hands of police/security forces, from January 2010 to December 2010, slow pace of investigation in 37 cases registered in various police stations regarding killings and failure on part of the police to register cases in respect of killings not covered by cases already registered. Petitioner on the strength of averments made seeks following relief: a) A direction to respondents to register cases wherever deaths have occurred and cases have not been registered under a proper First Information Report. b) To monitor and supervise investigation, where cases have been registered and ensure that proper evidence is collected and the investigation taken to its logical conclusion. c) A direction to respondents to constitute and appoint a High Level Committee comprised of men of eminence to suggest ways and means of preventing such deaths in future and to lay down norms to be publicly observed by the police/security forces armed personnel, before resorting to firing against the demonstrators. d) A direction to respondents to desist from use of lead bullets while dealing with peaceful demonstrations and demonstration involving stone pelting and instead use rubber bullets and water cannons and if at all necessary not to resort to firing except with express permission/order of a Magistrate who has at least 20 years service and a person of integrity with legal background so that the Magistrate would take into consideration relevant elements of law before taking a decision as regards firing. e) A direction to the Commission of Inquiry, already constituted and or to be constituted, having regard to the importance of the matter, to identify, ascertain and evaluate the circumstances attending the death of these 117 persons between January 2010 to December 2010 except those where the final report, consequent to investigation, has already been submitted before the competent court. f) To declare that in the event any armed personnel is found guilty of any act of omission and commission attracting penal provisional such armed personnel would not be entitled to claim immunity under the provisions of Armed Special Powers Act and or any other statute governing the field. f) To declare that in the event any armed personnel is found guilty of any act of omission and commission attracting penal provisional such armed personnel would not be entitled to claim immunity under the provisions of Armed Special Powers Act and or any other statute governing the field. g) That this Hon'ble court may also be pleased to pass appropriate directions, keeping in view the importance of the subject matter and in the larger interests of the people of the state so that the lives of the people are protected against wanton, arbitrary state action. Having regard to the issues raised in the petition, and in particular plight of 117 families that suffered loss of family member-in some cases, the only support of his family, the first and foremost issue was to direct the respondents to pay ex gratia relief to the bereaved families. Pertinent to point out that the State Government decided to pay Rs. 1 lac as ex gratia relief to each of the affected families. The Central Government alive to the colossal loss suffered by the affected families, decided to step in. It took a policy decision to pay Rs. 5 lacs to each of the affected families. This ordinarily should have ended the matter. However public grievance survived as some of the affected families were left out from the relief package by arbitrarily fixing the date of death for entitlement to the relief package. Once it was pointed out to the counsel for the respondents that the decision of the Central Government whereby it was decided to provide ex gratia relief of Rs. 5 lacs per family, was being misinterpreted and some of the affected families arbitrarily excluded from the relief package, the respondents decided to pay ex gratia relief to all the families identified in the petition. Ex gratia relief of Rs. 6 lacs per affected family stands paid. The decision taken by the respondents, therefore substantially redresses the grievances set out in the petition. 2. The State Government has vide SRO No. 283, dated 29th July 2010, constituted a Commission of Inquiry. However, Commission for various reasons did not take off. Ex gratia relief of Rs. 6 lacs per affected family stands paid. The decision taken by the respondents, therefore substantially redresses the grievances set out in the petition. 2. The State Government has vide SRO No. 283, dated 29th July 2010, constituted a Commission of Inquiry. However, Commission for various reasons did not take off. The Government vide SRO No. 176, dated 20th June 2014, has constituted a Commission of Inquiry with the following terms of reference: a) Enquire into the circumstances leading to deaths by firing, or otherwise, during maintenance of law and order in different districts of Kashmir Valley, during 2010. b) Enquire into the adequacy, or otherwise of the force used; c) Fix responsibility, wherever excessive force has been used, resulting fatalities, and where due care has not been taken to avoid such fatalities; d) Suggest measures to avert the recurrence of such incidents in future; and e) Recommend the action to be taken against person(s) authorities found responsible in any such incidents. 3. The Commission is expected to look into all the concerns set out in the petition, like ways and means to prevent such deaths in future, the extent of forces to be used in response to public demonstration, the circumstances attending death of 117 persons between January 2010 to December 2010, the methodology to be followed and precautions taken while dealing with the public demonstration and in particular opening fire on demonstrators. The Commission of inquiry is on the job and expected to submit its recommendation to the State Government. Once the recommendations are so made, the State Government is to act on such recommendations. 4. The respondents admittedly have registered 37 cases regarding 117 killings in question. In a few cases investigation has been concluded and chargesheet laid before the competent court. Let investigation in other cases be completed within eight weeks and result of such investigation placed before the competent court. The respondents shall register cases wherever the report is lodged but FIR for one or other reason not registered and conclude investigation in cases so registered as far as possible by 30th November 2015, and lay result of such investigation before the court. The matter against the above backdrop does not warrant any further proceedings and is accordingly closed.