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2018 DIGILAW 313 (JK)

Abdul Ahad Lone v. State of J&K

2018-05-17

SANJEEV KUMAR

body2018
JUDGMENT : 1. The petitioner has filed the instant writ petition seeking following reliefs :- “Mandamus:- Commanding the respondents to produce the report filed by the petitioner before the Police Station Trehgam and report pertaining to the Dead body of the deceased Ahmad Lone and any other material if collected during the investigation before this Hon’ble Court and thereafter the Hon’ble Court may direct the Crime Branch Srinagar to conduct and complete the investigation and produce the challan against the accused before the Court of competent jurisdiction. And for any other writ order or direction though not specifically prayed for, yet this Hon’ble Court may deem fit and proper in the circumstances of the case, be also passed in favour of the petitioner and against the respondents” 2. Petitioner submits that he was working as a casual labour with the Army and he had to carry load from base camp to advanced pickets, which were in Jungles of Kupwara range. According to the petitioner, on May 18, 1993 he was given the load to carry which was so heavy that he could not carry alone. Therefore, he asked his father to help him to carry the load at the requisite place. After delivering the load, petitioner’s father left for his home and he had to pass through a thick forest. In the evening when the petitioner came to his house he found that his father had not returned and accordingly he went to the Army Camp and reported about missing of his father. Thereafter, on 19th May, 1993 petitioner submitted a report in Police Station Kupwara. After permission was granted, that too, after eight days, to search for the dead body, they found the dead body kept under the bushes. Thereafter the dead body was handed over to the Police and autopsy was conducted but thereafter no investigation in the matter was conducted nor was any information given to the petitioner about the result of investigation. 3. Respondents in their objections have submitted that a report was lodged by Major Pankaj Joshi of 12 Mahar Regiment on May 21, 1993 with Police Station Kralpora stating that the patrolling party noticed one person in suspicious manner. The said person lobbed grenades on the patrolling party and in the encounter he was seriously injured. 3. Respondents in their objections have submitted that a report was lodged by Major Pankaj Joshi of 12 Mahar Regiment on May 21, 1993 with Police Station Kralpora stating that the patrolling party noticed one person in suspicious manner. The said person lobbed grenades on the patrolling party and in the encounter he was seriously injured. As per the report, the person before succumbing to his injuries revealed the patrolling party that he was acting as guide. The dead body was buried on 19.05.1993. Accordingly, FIR No.56/93 under Section 3/4 TADA was registered and investigation was taken up. According to the respondents, the petitioner also lodged a report with Police Station Trehgam regarding the death of his father. It appears that the Police while registering FIR at the instance of Major Pankaj Joshi did not register any case on the report filed by the petitioner. Resultantly, investigation was conducted only in case FIR No.56 of 1993 and concluded as ‘not traced’. The Final Police Report was filed before the Magistrate which was accepted. 4. On 05.03.2012, having regard to the controversy involved, this Court asked the learned Sessions Judge, Kupwara to inquire into the matter and submit his report within four months. 5. In compliance to the order of this Court, learned Principal Sessions Judge, Kupwara submitted his report/judgment on 23.05.201. The learned Sessions Judge after recording the statement of witnesses and affording opportunity of hearing to the parties, concluded in the following manner :- “1. That the deceased Ahmad Lone S/o Akbar Lone R/o Budhambal was a civilian and was not connected with any militant organization and was not a guide of militants. 2. That the death of the deceased be deemed as a death of a civilian caused by firing by the army personnel and the death has not occurred in any militancy related incident connected with the deceased. 3. That the dependents of the deceased be granted ex-gratia relief/compassionate appoint or payment of cash compensating in lieu of compassionate appointment under applicable norms/rules.” 6. In response to the inquiry report, the respondents filed their reply/objections reiterating the stand taken by them earlier. 7. 3. That the dependents of the deceased be granted ex-gratia relief/compassionate appoint or payment of cash compensating in lieu of compassionate appointment under applicable norms/rules.” 6. In response to the inquiry report, the respondents filed their reply/objections reiterating the stand taken by them earlier. 7. Learned counsel for the petitioner submits that in the inquiry conducted by the Principal Sessions Judge, Kupwara it has been established that the petitioner’s father had not died in any militancy related incident connected with the deceased and that the death was caused by firing by the army personnel. He contends that it has also been established in the inquiry that the deceased father of the petitioner was not connected with any militant organization. Learned counsel further submits that the inquiry report submitted by the Principal Session Judge, Kupwara be accepted and the person responsible for the death of the deceased be dealt with in accordance with law, more so, when the same has not been contested by the respondents on merits. 8. Learned counsel for the respondents submits that the deceased was involved in the militancy related activities and was a guide of militants. He further submits that the investigation was conducted by the police authorities and closure report was submitted before the Court of competent jurisdiction and the same stands accepted. However, he fairly conceded before the Court that the findings recorded by the Principal Session Judge, Kupwara have not been challenged either by the Police authorities or by the army authorities but submits that the same cannot be relied upon for any purpose in the face of closure report having been accepted by the Court of competent jurisdiction. 9. Heard learned counsel for the parties and perused the record. 10. Admittedly, the investigation conducted by the police authorities concluded the case as ‘not traced’ whereas in the inquiry conducted by the learned Sessions Judge, Kupwara in terms of order of this Court, it has been concluded that the death of the deceased had not occurred in any militancy related incident and thus, would be deemed as a death of a civilian caused by firing by the army personnel. 11. We are, thus, confronted with a situation where the police after registration of FIR conducted its investigation and concluded the case as ‘not traced. The closure report submitted by the police has also been accepted the Court of competent jurisdiction. 11. We are, thus, confronted with a situation where the police after registration of FIR conducted its investigation and concluded the case as ‘not traced. The closure report submitted by the police has also been accepted the Court of competent jurisdiction. On the other hand, we have a report of the learned Principal Sessions Judge, Kupwara returning the findings as reproduced herein above. Though, the nature of jurisdiction to be exercised by a police officer while investigating a criminal case is different from the jurisdiction exercisable by a civil/criminal Court while holding enquiry into a particular fact, may be either on its own motion or pursuant to the directions issued by the High Court, yet in case of contradiction, the findings of fact returned by a Judicial Officer of the rank of a Sessions Judge that too pursuant to the directions issued by this Court are required to be given due deference, more so, when the same have remained unassailed. 12. Now the question which arises for consideration of this Court is that if the inquiry report submitted by the Principal Sessions Judge, Kupwara is accepted what would be the relief which can be granted to the petitioner at this stage. Although, the relief claimed by the petitioner has been rendered infructuous due to submission of the closure report by the police and its acceptance by the Court of competent jurisdiction, yet the second relief which is general in nature can be granted in favour of the petitioner in view of the subsequent developments i.e. findings of fact returned by the learned Sessions Judge, Kupwara in an inquiry held pursuant to the directions of this Court. 13. Learned Principal Sessions Judge, Kupwara has concluded that the death of the deceased be deemed as a death of a civilian caused by firing by the army personnel and that the death has not occurred in any militancy related incident. However, in the inquiry report it has also not been established as to who was responsible for the death of the deceased father of the petitioner. More so, Major Pankaj Joshi on whose report FIR No.56/93 under Section 3/4 TADA was registered has already died, therefore, the relief which has been recommended by the Principal Sessions Judge, Kupwara is the only relief which can be granted in favour of the petitioner. 14. More so, Major Pankaj Joshi on whose report FIR No.56/93 under Section 3/4 TADA was registered has already died, therefore, the relief which has been recommended by the Principal Sessions Judge, Kupwara is the only relief which can be granted in favour of the petitioner. 14. Accordingly, while accepting the inquiry report submitted by the Principal Sessions Judge, Kupwara, I direct the respondents to treat the death of deceased Sh. Ahmad Lone as a death of a civilian caused by firing of the army personnel and not occurred in any militancy related incident connected with the deceased. That being so, the next of kin of the deceased, namely, the petitioner shall be entitled to all the benefits/reliefs those are available to dependent of a civilian killed in an action by the State as per applicable norms/Rules. Respondent No.1 shall consider the claim of the petitioner for permissible benefits like ex-gratia, compassionate appointment or payment of cash compensations in lieu of compassionate appointment etc, as may be permissible under the applicable norms/Rules of the State, within a period of two months from the date of receipt of certified copy of this order. 15. The writ petition shall stand disposed of in the above terms.