Nazira Begum And Another vs State J and K and Others

Hasnain Massodi, Judge

On 23rd September, 2011 Shri Parvez Imroz Advocate, learned Counsel for the petitioners' addressed arguments at length and referred to the

facts and events reflected in the petition and documents appended thereto that, according to Mr. P. Imroz must persuade the Court to grant reliefs

sought in the petition. On 30th September 2011, Shri Prashant Bhushan, Learned Senior Advocate appearing for the petitioners, concluded

arguments in presence of Mr. Magray Senior Additional Advocate General' Counsel for the respondents. Against the backdrop of case set up and

arguments advanced, Learned Advocate General/ Counsel on behalf of the State Government, was requested to assist the Court on the next date

of hearing. The respondents were given liberty to submit written arguments, if so advised. Learned Advocate General, accordingly, submitted

written arguments, which are taken on record. Heard and perused the petition with it's annexures and material available on record.

S/Shri Fazal Hussain Dar, Fareed Hussain Dar Son of Fazal Hussain, Mohamad Hussain Son of Abdul Razaq, Talib Hussain Son of Shri

Ghulam Nabi Lone all Residents of village Malani Tehsil Baderwah, were allegedly abducted on 3rd. January, 1996 and were later with the

exception of Shri Talib Hussain, killed by their abductors near Premnagar on the banks of river Chenab. Shri Talib Hussain, who was allegedly

also thrown by the abductors in river Chenab, escaped the bullets, spent the night at the place of occurrence and reported the matter next morning

i.e. 4th January, 1996, to the locals from village Malani, who had assembled at Pul Doda to enquire about whereabouts of the abducted. The

occurrence prompted Police Station, Baderwah to register case FIR No. 7/1996. The Investigating machinery was set into motion. The

investigation, revealed that one Shri Mohamad Ashraf Son of Shri Gulab Shah Resident of Doda' respondent No. 6 herein, had prior to the

occurrence become notorious, for his criminal and anti-social activities. He was time and again reprimanded by respectables of the locality for

indulging in criminal and anti-social activities including the offences against women. S/Shri Fazal Hassan Dar and others according to investigation,

took a lead role in local effort to pursuade the respondent to refrain from his criminal and anti-social activities. The respondent No. 6 who on 30th

September, 1995 was appointed as Special Police Officer (SPO) and associated with anti-militancy operations, annoyed by attitude of the

deceased and Shri Talib Hussain, to wreck vengeance, hatched conspiracy with Shri Tariq Hussain Son of Mohamad Shafi Resident of Kokernag

and one Abdul Sattar Resident of Anantnag to eliminate the deceased. In furtherance of criminal conspiracy so hatched, the respondent No. 6 and

his accomplices on 30th January, 1996 abducted Fazal Hussain and others in a police vehicle, with the intention to liquidate them, took them to the

banks of river Chenab near Premnagar, Doda, opened fire on them with the weapons procured from local police and killed Fazal Hussain,

Mohamad Hussain and Fareed. Shri Talib Hussain, however, though thrown in river, clung to a stone escaped bullets and survived to tell the

sordid story to the inhabitants of Malini who as stated had by the next morning day (4th January, 1996) assembled near Pul Doda to enquire about

whereabouts of Fazal Hussain and others. The Investigating Officer, was lead to the place of occurrence by Shri Talib Hussain, where a few bullet

shells were recovered and blood socked-soil and blood stained stones seized. The investigation was concluded as proved against the respondents

6 and 7 in the petition and one Abdul Sattar Resident of Anantnag. The accused were prima-facie, found to have committed offences punishable

under Sections 302, 307, 364, 201 and 120 RPC and 3/27 Arms Act.

The Charge-sheet was presented before the Chief Judicial Magistrate on 23rd December 1996. The case being one exclusively triable by

Sessions Court, it was accordingly committed to the Court of Sessions. The Session Court took up the matter first time on 16th January 1997. The

accused except the respondent 6 managed to give a slip to law and the case was directed to proceed against them u/s 512 Cr.P.C. The

respondent No. 6 was formally charged of the offences alleged in the Charge-sheet on Ist. July, 1998. The trail concluded on 8th November 1999

and the respondent No. 6 acquitted of all charges. However the General Warrant of Arrest issued against other two accused was directed to

remain in force till their presence was secured.

It appears that a few days after case FIR 7/1996 was registered and investigation started, as per claim set out in the petition, the petitioner No.

1 submitted an application to Chief Judicial Magistrate, Doda for 'judicial investigation'. The application was sent to Sub Divisional Police Officer,

Baderwah for appropriate action. However, the Sub Divisional Police Officer, Baderwah according to the petitioner No. 1 did not take any action

in the matter and ignored the order of Chief Judicial Magistrate. The petitioner No. 1 thereafter on 8th April, 1996 approached National Human

Rights Commission, with an application for re-investigation of the matter. The Director General of Police pursuant to a direction issued by National

Human Rights Commission on 24th June, 1997 directed re-investigation of the matter by Crime Branch. However, as already pointed out the

investigation in case FIR No. 7/1996 Police Station, Baderwah by that time was concluded as proved against the respondent No. 6 and his two

alleged accomplices and Charge-sheet presented before the competent Court on 23rd December, 1996. The case was also committed to the

Court of Sessions and proceedings commenced thereupon. The order dated 24th June, 1997 was not brought to the notice of learned Sessions

Judge Baderwah. The trial therefore proceeded unmindful of the investigation directed by the Director General of Police in compliance of the order

of National Human Rights Commission. However, while the trial made the progress the re-investigation of the matter by Crime Branch also

continued.

During the course of re-investigation, by Crime Branch, two status reports were prepared by Shri Bachan Singh Chaudhary Assistant

Superintendent of Police Crime Branch on 16th January 1998 and Smt. Shikha Goyal Assistant Superintendent of Police Crime Branch on 12th

November, 1998. The status reports, seemingly were prepared for perusal of the Director General of Police and not forwarded to the trial Court.

The status reports, according to the petitioner, voiced apprehensions about negligence on the part of the then DIG Udhampur-Doda Range'

respondent No. 2 in the present petition, as according to the reports the respondent No. 2, though informed by driver of the police vehicle used by

the respondent No. 6 and his alleged accomplices identified in the report as 'friendly militants', of commission of crime, the respondent No. 2 did

not get the respondent No. 6 and his alleged accomplices arrested and case registered. Shri Bachan Singh Choudhary opined that it was due to

negligence on the part of the respondent No. 2 that only one of the accused' respondent No. 6 was arrested, while his alleged accomplices had

succeeded in giving a slip to law. Mr. Bachan Singh Chaudhary, further concluded that the operation to make the militants surrender, using services

of the 'friendly militants' or to capture the militants was planned by the respondent No. 2 and that the plan had resulted in gruesome murder of three

persons at the hands of respondent No. 6 and his accomplices. While copy of the status report prepared by Shri Bachan Singh Chaudhary

Assistant Superintendent of Police, Crime and Railway Branch, Jammu dated 16th January, 1998 is placed by the petitioners on file, no such copy

of the status report claimed to have been prepared by Smt Shikha Goyal on 12th November 1998 is available on record. However, petitioners'

case is that the second status report while confirming the conclusions drawn by Shri Bachan Singh Chaudhary Assistant Superintendent of Police

Crime and Railways, also pointed to tampering of record by the police. The petitioners earlier on 10th March, 1997 also approached the Chief

Minister with an application to handover investigation of the case 'FIR 368/452' regarding triple murder of innocent persons of village Mahini

(Prana)' to CBI. The Crime Branch finally on 4th December, 1999 closed the investigation.

The petitioners, about 12 years after the learned Sessions Judge dismissed the Charge-sheet against the respondent No. 6 and 11 years after

the Crime Branch closed the re-investigation in the matter (CR. 20482) have approached this Court with the petition on hand seeking following

reliefs:

(I) A writ of mandamus directing the respondent No. 1 to re-open the case and conduct a fresh investigation in order to identify the actual accused

and the involvement of the respondent No. 2 according to the Crime branch investigation progress report dated 16.01.1998, as per the law laid

down by the Supreme Court of India.

(II) A writ of mandamus directing for holding of the investigation by the Central Bureau of investigation (CBI).

(III) A writ of certiorari, for quashing the closure of the Crime Branch re-investigation vide letter No. CR/20482 dated 04.12.1999.

The grounds, urged in the petition are that the investigation conducted by Police Station, Baderwah was faulty and dishonest and aimed to shield

the actual culprits including the respondent No. 2; that the mode and manner in which the investigation was conducted has deprived the petitioners

of fair investigation and fair trial; that the Investigating Officer willfully withheld the antecedents and other particulars of accomplices of the

respondent No. 6 making it impossible to secure their presence and put them on trial; that during trial the respondent No. 6 was reported to have

escaped from the police custody and in the wireless message dated 07.11.1996 flashed by Police Control Room reporting the incident, particulars

of respondent No. 6 were sketchy so as to help him to evade arrest; that the respondent No. 6 thereafter was instead of custody in the District Jail

Udhampure, shifted to Government Medical Hospital Jammu. The petitioners further allege that the investigation conducted in case was shoddy;

that even the prosecution before the Sessions Court was conducted in perfunctory manner and that the defective investigation and in-effective

prosecution lead to acquittal of the respondent No. 6 and non-prosecution of respondent No. 2.

For appreciating in right perspective, the case set up by the petitioners in the petition on hand, to persuade the Court to order reinvestigation and

retrial, it is necessary to highlight a few events including omissions and commissions attributable to the petitioners from the date the tragic

occurrence took place. The occurrence, as pointed out, took place in the intervening night of 3rd and 4th January, 1996. The Police Station

Baderwah registered a case on 4th January, 1996 itself i.e. within hours of occurrence. There is, therefore, no scope for the argument that the

registration of case was delayed at the instance of respondent No. 2 or otherwise. The Investigating machinery was set into motion immediately

and the Investigation team rushed to the place of occurrence right in time so as to lay hands on bullet shells, blood-soaked soil and stones with

blood stains. The Investigating Agency thus cannot be said to have delayed the investigation or allowed the important evidence to be lost or wiped

out. The material collected from the place of occurrence was immediately sent to the Forensic Science Laboratory. It is thus nobody's case that

case material was not forwarded, so as to make it difficult for the FSL Experts to analyze material and give report, because of detoriation of the

material. The Investigating Officer, recorded statements of all the important witnesses including PW Talib Hussain who though allegedly abducted

by the respondent No. 6 and his two accomplices, was fortunate to survive the bullets and escaped from the scene of occurrence. The other

witnesses examined are close relatives of the alleged victim who were either present when the deceased were whisked away by the abductors or

were able to be give details of the occurrence. The Investigating Agency thus cannot be said to have avoided to examine the important and key

prosecution witnesses so as to shield the accused.

Let us now turn to the trial. The Charge-sheet, as already pointed out, was presented before the Chief Judicial Magistrate on 6th February,

1996. The trial concluded on 8th November, 1999. The criminal proceedings emanating from the Charge-sheet, therefore, were pending for a

period of three years. It was not thus a case where the trial was concluded in hot haste and trial Court was in a rush to somehow conclude the

proceedings. The prosecution examined as many as 12 witnesses in support of the charge. The witness examined by the prosecution included PW

Talib Hussain a key witness to the occurrence, PW Shadi Lal driver of the truck alleged to have been used by the respondent No. 6 and his two

other accomplices, to abduct the victims and PW Talib Hussain, PWs Shri Baldev Raj and Som Nath Personal Security Officers of respondent

No. 6. PW's Mushtaq Ahmad, Suriya Begum, Rashid Ahmad, Yaseer Arafat, Shaheena' close relations of the victims and PW Zaitoon Begum a

tenant of one of the victims. The prosecution in the circumstances cannot be said to have withheld important prosecutions witnesses so as to

engineer acquittal of the respondent No. 6 and his accomplices. The prosecution witnesses have been subjected to cross examination and it is only

after prosecution witness including one of the victims allegedly abducted by the accused and close relations of the witnesses, belied the prosecution

case that learned Sessions Judge Baderwah dismissed the Charge-sheet against the respondent No. 6 and acquitted the respondent. It is not thus

case where the trial can be labeled as mock trial.

The other and more important aspect of the case relates to the conduct of the petitioners' after the investigation was conducted and respondent

No. 6 acquitted. The petitioners did not avail the legal devices available to them, to question the investigation, to take steps for impleadment of a

person other than the accused named in the Charge sheet as accused, to ask for further investigation or to question the outcome of the trial. It

needs no emphasis that after the Charge-sheet was presented on 23rd December, 1996 the petitioners had a fairly good idea about the story set

up by the prosecution and about the accused held by it responsible for abduction and gruesome murder of three of the four victims. The petitioners

had an opportunity on 23rd December, 1996 and thereafter to approach the Court for further investigation in terms of Section 173 (8) Cr.P.C..

The petitioners however, did not make use of the tools available to them to question the mode and manner of the investigation. The petitioners and

other relations of the deceased who claimed to be witnesses to the occurrence had an opportunity to appear in witness box and narrate the facts

and evens that lead to the abduction and killing of the victims. However, when the petitioner No. 2 and other close relations of the victims

appeared in witness box, they very conveniently decided not to support the prosecution case and did not complain of any coercion, undue

influence, and intimidation before or during the trial Court or at the time they appeared in witness box. During trail or for next ten long years, the

petitioners did not assail the judgment of acquittal, recorded by trail Court on 8th November, 1999, in appropriate proceedings before the High

Court. The petitioners after the aforestated omissions and commissions on their part cannot be heard saying, that too after more than a decade,

that investigation was faulty, prosecution was lackadaisical and that the trial was conducted in a lifeless manner.

The petitioners edifice their case for reinvestigation and retrial on two status reports prepared by Shri Bachan Singh Chaudhary Assistant

Superintendent of Police Crime Branch on 16th January, 1998 and Smt. Shikha Goyal Assistant Superintendent of Police Crime Branch on 12th

November, 1998, during reinvestigation ordered by the Director General of Police on 24th June, 1997. Reliance is placed on two status reports

unmindful of the fact that these were tentative in character and represented only a prima-facie view as on the date, such reports were prepared.

The petitioners fail to realize that the final outcome of reinvestigation did not support the prima-facie view taken at the stage status reports were

prepared. Once final outcome of the reinvestigation did not support the petitioners' case, the interim status reports taken to have merged with the

final report, cannot help the petitioners in their case, that there was involvement of the respondent No. 2 in one or the other way in the alleged

occurrence.

This apart even the status report prepared by Shri Bachan Singh Choudhary'Assistant Suptd. of Police, Crime Branch on 16th January, 1998 does

not point to involvement of respondent No. 2 in the occurrence. The report merely alleges that once the respondent No. 2 was informed by Shri

Shadi Lal driver of the vehicle allegedly used by the respondent No. 6 and his accomplices about the occurrence, the respondent No. 2 did not get

the case registered with proper dispatch and respondent No. 6 and his accomplices arrested. There, as is evident from the record, was not delay

at all in registration of the case. It may be recalled that the occurrence was reported in morning of 4th January, 1996 and the case FIR 07/1996

was registered on 4th January, 1996 itself at Police Station Baderwah. The inaction, if any, on part of the respondent No. 2 therefore cannot be

said to have contributed to the delay in registration of the case when there as a matter of fact was no delay in registration of the case and

subsequent investigation. In the opinion of Mr. Bachan Singh Chaudhary the occurrence was outcome of the operation planned by the respondent

No. 2 to use the services of 'friendly militants' to arrest the militants or engineer their surrender. This again does not allege involvement of

respondent No. 2 in the occurrence.

Learned counsel for the petitioners' while elaborating on the grounds set up in the petition have placed reliance on law laid down in Zahira

Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, known as 'Best Bakery case'. It is pointed out that the Court could must not

feel dissuaded from directing reinvestigation and retrial, once it is satisfied that the petitioners have been denied fair investigation and fair trial and

their fundamental rights violated, only because the trial stands concluded and accused acquitted. There can be no disagreement with the argument

advanced by the learned Counsel, that 'criminal trials', in the words of the Supreme Court 'should not be reduced to be mock trial or shadow-

boxing or fixed trials', that the 'Judicial Criminal administration System must be kept clean'.' and that the 'Courts have to ensure that accused

persons are punished and that might or authority of the State are not used to shield itself or its man', yet it is to be kept in mind that the

reinvestigation or retrial cannot be directed, that too more than a decade after the trial has concluded, unless it appears from the record that the

investigation has been grossly misdirected for malafide reasons, the prosecution suffers from apathy, and indifference and that the trial Judge has

been a passive spectator and failed to play the role mapped out for him, in the Criminal Procedure Code and the Evidence Act. The facts in the

present case are markedly different from the facts of the Best Bakery Case. In the case relied upon either the Investigating Agency, was found to

have willfully avoided to record statements of a number of victims/witness or to have for malafide reasons examined a number of persons closely

related to the accused as witnesses so as to enable the accused earn an acquittal. Again retrial was directed in the Appeal filed by the complainant

who did not allow, the chance to question the judgment, to fritter-away and made use of the legal device that was available to her. Supreme Court

in Satyajit Banerjee and Others Vs. State of West Bengal and Others, pointing out that the observations made in Best Bakery Case were not to be

applied in all the cases, irrespective of the facts, has observed;_

The law laid down in the 'Best Bakery Case' in the aforesaid extraordinary circumstances, cannot be applied to all cases against the established

principles of criminal jurisprudence. Direction for retrial should not be made in al or every case where acquittal of accused is for want of adequate

or reliable evidence. In Best Bakery Case, the first trail was found to be a farce and is described as 'mock trial'. Therefore, the direction for retrial

was in fact, for a real trial. Such extraordinary situation alone can justify the directions as made by this court in the Best Bakery Case (supra)

For the reasons discussed above, I do not find any merit in the petition. The petition does not deserve to be entertained and is accordingly

dismissed.