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2019 DIGILAW 98 (JK)

J&K High Court Bar Association v. State of J&K

2019-02-27

ALI MOHAMMAD MAGREY, SANJEEV KUMAR

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Judgment Ali Mohammad Magrey, J.—This petition, professed to be in public interest and on behalf of the Jammu and Kashmir High Court Bar Association, Srinagar, has been filed by Mr Mian Abdul Qayoom, Advocate, President of the Bar Association, with the prayer, inter alia, to order and monitor conduct of probe by a team of Officers in the incidents of Chak Dragmulla, Kupwara dated 21st of May, 2016 and Sarai Bala, Srinagar dated 23rd of May, 2016. The prayer clause of the petition, which is pivotal to its ultimate decision, would be reproduced in extenso, at appropriate place in this judgment; first a resume of the relevant narrative of the petitioner. 02. The petitioner states that according to newspaper reports published on 21st of May, 2016, five militants were killed and three army men injured in a nine-hour long encounter in Chak Dragmulla village of North Kashmir’s Kupwara District. It is stated that the forces blew up the house where they claimed the militants were hiding and after medico-legal formalities, the bodies of the slain militants, who were killed, were handed over to the local Auqaf Committee for last rites. Thereafter, as stated, on 23rd of May, 2016, the newspapers reported that after getting the bodies from the forces, the local residents delayed the burial of the slain militants on Saturday evening and kept the bodies at a seminary for the night. It is alleged that the local people also contested the forces claim that the five militants were killed in a gunfight and, instead, averred that the encounter was a fake and staged one. It is also alleged that as per the locals the militants had been killed five to six days before and were brought to the village to show that they were killed in an encounter. 03. As regards the second incident dated 23rd of May, 2016, whereby two youth were killed by police in a gunfight at Sarai Bala, Srinagar, it is stated that Mst. Raja Begum, the landlady in whose house the two youth were residing on rent, contested the claim of the police by stating that the two youth were not militants, but students who could speak in Kashmiri and only carried books and clothes with them. Raja Begum, the landlady in whose house the two youth were residing on rent, contested the claim of the police by stating that the two youth were not militants, but students who could speak in Kashmiri and only carried books and clothes with them. It is contended that the family members of the house, where the two youth were residing on rent basis, stated that they were taking dinner when the cops of the Special Operation Group of J&K Police entered their house on late Monday evening and asked them to come out and show them the way to upstairs and that when they went upstairs, there was sudden firing. Thereafter, it is alleged that both the students were arrested first and later killed; one of them in the room and the other on road. 04. On notice, the respondent police authorities as well as the Union of India have filed their respective objections. The respondent Union of India have submitted that based on a specific input about the presence of five terrorists in a house in village Chak Drugmulla, a joint operation was lunched, resulting in elimination of five foreign terrorists. It is submitted that large number of arms and ammunition was recovered from the house in which the terrorists were hiding and that the claim of the encounter being fake is baseless, without any credible proof. 05. The respondent police authorities have filed two parawise replies; one by the Senior Superintendent of Police (SSP), Kupwara as regards the incident at Chak Drugmulla, Kupwara and the other by the Senior Superintendent of Police (SSP), Srinagar relating to incident at Sarai Bala, Srinagar. In the parawise reply filed by the Senior Superintendent of Police (SSP), Kupwara, it is stated that the police and the security forces started search operation at Check-e-Drugmulla on 21st of May, 2016 at about 06.00 a.m. and that FIR No. 100/2016 under Sections 307 RPC, 7/27 Arms Act was registered in Police Station, Kupwara. Thereafter, it is stated that the militants who were hiding in the house of one Mohammad Syed Shah S/o Bahaw-ud-Din shaw, opened fire on security forces, who retaliated and the exchange of fire at regular intervals continued upto 5 p.m. It is further stated that during the course of operation, the militants showered bullets and also threw hand grenades on security forces which resulted in injuries to several army personnel. Finally, as stated, the house where the militants had taken refuge was brought to ground and bodies of five unidentified militants were recovered from the spot alongwith arms and ammunition. The dead bodies of slain militants were taken into custody for medico legal formalities and autopsy of the dead bodies were conducted by a team of doctors on the spot at 05.50 p.m. which lasted for nearly three hours. It is informed that all the dead bodies were photographed and samples of nails and hair were preserved for DNA profiling in order to settle any claim of identification. It is contended that the dead bodies were handed over to local Auqaf at about 09.00 p.m. who decided to go for last rites on the next day because of the reason that the youngsters of the locality were pelting stones on police and security forces, as is usually happening during and after encounters with militants in the Valley and that the people of the village wanted to bury the militants in presence of huge crowd of adjoining villages as well. Thereafter, in pursuance of directions of this Court, the Senior Superintendent of Police (SSP), Kupwara, has filed a compliance report dated 31st of May, 2018, informing therein that a Magisterial enquiry has also been ordered by the District Magistrate Kupwara vide order No. 38-DMK/ADM of 2016 dated 24th of June, 2016, as mandated by the law. It is also submitted that after holding the enquiry into the incident, the Enquiry Officer has submitted a detailed Magisterial enquiry report into the above incident vide No. 16/SDM/SW/Estt/18 dated 11th of April, 2018, wherein it was opined that the security forces responded swiftly and conducted the operation gallantly in such a congested populated area. It has also been stated that all the early measures were taken by the security forces to save the lives of the civilians and property alongwith other properties of crores existing in the surrounding area and no malaise was established in the operation. 06. It has also been stated that all the early measures were taken by the security forces to save the lives of the civilians and property alongwith other properties of crores existing in the surrounding area and no malaise was established in the operation. 06. In the objections filed by the Senior Superintendent of Police (SSP), Srinagar, it is submitted that on 23rd of May, 2016, the Police Station, Sheergadi, Srinagar, received a docket from SI Mohammad Irfan, No. EXK-109318 of ESU South Zone, Srinagar, to the effect that ESU South received reliable information that a group of banned militant organization JEM (Jesh-e-Mohammad) were holding in the area of Sarai Balla, Srinagar city. On this information, as stated, the said officer, alongwith ESU South Zone Nafri, rushed towards Sarai Bala, Srinagar and managed them to zeroing near Iqra Masjid Saraiballa, Srinagar. It is further submitted that during search operation, unknown militants started fire indiscriminately on the search party, whereafter the search party retaliated the firing for self-defense, leading to exchange of fire and the area being cordoned off etc. It is contended that on receipt of this docket, a case FIR No. 31/2016 under Section 307 RPC, 7/27 IA Act was registered and investigation were set into motion. It is further pleaded that during investigation, it came to surface that during retaliation of firing, two terrorists of JEM were killed, one identified as Saifullah R/o PoK and identity of the other terrorist was being ascertained. It is further informed that some incriminating material, including two different election cards with two different names of one of the slain militants in which one of the identity cards depicts his identity as Subrat Kumar Hati S/o Bijay Kumar Hati R/o Kankadejodi, Cuttack State Orissa, whileas another identity card of the same individual shows his identity as Mohd. Qasim S/o Allahudin R/o 130-Pahusana District Arariya State Bihar, were recovered during search of their rented room hired in the house of one Bilal Ahmad Hakim S/o Gh. Mohammad Hakim R/o Saraiballa Srinagar, besides arms and ammunition were also recovered from their possession. Thereafter, as stated, dead bodies were taken into custody for conducting post mortem and DNA test. Accordingly, it is further submitted that the post-mortem was conducted and DNA samples were taken in presence of Executive Magistrate 1st Class and, subsequently, the dead bodies were handed over to Auqaf Committee, Sheeri Baramulla for last rites. Thereafter, as stated, dead bodies were taken into custody for conducting post mortem and DNA test. Accordingly, it is further submitted that the post-mortem was conducted and DNA samples were taken in presence of Executive Magistrate 1st Class and, subsequently, the dead bodies were handed over to Auqaf Committee, Sheeri Baramulla for last rites. Lastly, it is also informed that an enquiry under Section 176 Cr. P.C. has been initiated by the respondents with regard to the incident at Saraibala, Srinagar whereunder the investigation is going on. 07. We have heard the learned counsel for the parties. We have also gone through the pleadings, the material brought on record, the judgments produced by the arguing counsel and considered the matter. 08. At the first blush, let us go through the relief prayed for by the petitioner in the instant petition which reads thus:— “In the premises, it is therefore, prayed that by issuance of an appropriate writ, order or direction, the two incidents of Chak Dragmulla Kupwara dated 21-5-2016 and Sarai Bala, Srinagar dated 23-5-2016 be got investigated by appointing an honest, upright, credible, independent and impartial team of officers and the said investigation be monitored till it reaches to its logical end so that whosoever is found guilty of the commission of the gruesome crime, in whatever manner, is dealt with in accordance with law.” 09. From a bare perusal of the prayer so made in the petition, it becomes axiomatic that the crux of the relief prayed for in the petition is that there should be an effective and impartial probe into the incidents of Chak Dragmulla, Kupwara dated 21st of May, 2016 and Sarai Bala, Srinagar dated 23rd of May, 2016. 10. As indicated above, the FIRs stand duly registered at the concerned Police Stations in relation to the incidents in question. Not only that, enquiries have been ordered in both the incidents and in the incident of Chak Dragmulla, the magisterial inquiry has been concluded wherein no Government agency has been indicted and further investigation is in progress. As regards the other incident at Saraibala, Srinagar, it is stated that the investigations are going on and so far, there too, the role of no Government agency has been doubted. As regards the other incident at Saraibala, Srinagar, it is stated that the investigations are going on and so far, there too, the role of no Government agency has been doubted. Strictly speaking, this is, therefore, not a case where the State or any of its concerned functionaries have been derelict in their duties or have failed to act promptly so as to supply a reason for this Court to take any action in the matter. In fact, the sincere endeavour of the respondents seems to be to promptly investigate the cases in question. The object of investigation certainly is to conduct all such proceedings under the Code of Criminal Procedure, Samvat, 1989, as may be necessary for collection of evidence by the Police. 11. Coming to the contention of the petitioner that a probe be ordered in the incidents in question, much of the time and energy was spent by the learned counsel on either side arguing the case for and against the aforesaid prayer and its different nuances, including whether this Court can order appointment of an enquiry commission and whether news reports could form basis for maintaining this petition. Learned counsel have cited numerous judgments for and against the propositions argued in that behalf, but we think, in reality, such issues are secondary in nature; the primary issue is whether there is really anything required to be done by this Court. Therefore, we do not mention these judgments herein. In the face of the prayer sought for by the petitioner in the instant petition, if the same is allowed and an investigation, at this stage, by some authority is ordered, what would be the function of the authority sought to be appointed: would it supervise the investigation or conduct a parallel investigation, that too, with the aid of a team of police Officers. Both these propositions are impracticable and impermissible. Further, there is no reason for this Court to suspect that the Police would not do what is required of them under the Code of Criminal Procedure to achieve the aforesaid objectives. Even if, for the sake of argument, a probe is ordered, any report that may ultimately be made by such authority would not be more than a recommendation. And such authority, for formulation of such recommendation, would again be dependent upon the very same police agency. 12. Even if, for the sake of argument, a probe is ordered, any report that may ultimately be made by such authority would not be more than a recommendation. And such authority, for formulation of such recommendation, would again be dependent upon the very same police agency. 12. A Division Bench of this Court in PIL No. 07/2016 titled ‘J&K High Court Bar Association v. State of JK & Ors.’, has, vide judgment dated 4th of May, 2016, already dismissed a public interest litigation on the same subject of which, incidentally, one of us (Magrey, J.) is the author. 13. In light of the above, we are of the considered view that this is not a case where this Court would need to take any action in exercise of its inherent powers, for, the State and its functionaries have already taken the required steps envisaged by law. In that view of the matter, this petition is, accordingly, dismissed as being unnecessary. There shall, however, be no order as to costs.