Jammu & Kashmir High Court - Srinagar Bench
Javaid Ahmad Raina vs Union Territory Of J&K And Others on 21 September, 2022
Author: Pankaj Mithal
Bench: Chief Justice, Sindhu Sharma
Sr. No.16
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
LPA No.01/2020
Javaid Ahmad Raina ... Appellants.
Through: Mr. Mir Majid Bashir, Advocate.
Vs.
Union Territory of J&K and others. ....Respondent(s)
Through: Ms. Asifa Padroo, AAG, for respondents 1 to 4 & 6.
Mr. T. M. Shamsi, DSGI for respondent no.5.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE SINDHU SHARMA, JUDGE
ORDER
21.09.2022 Pankaj Mithal, CJ
1. The petitioner-appellant has come up in this appeal under Clause 12 of the Letters Patent against the judgment and order dated 19.11.2019 passed by the learned Single Judge dismissing his OWP No.1525/2017 wherein he inter alia claimed quashing of the order dated 08.08.2017 passed by the State Human Rights Commission dismissing his petition for compensation on account of death of his father in police firing. The petitioner-appellant apart from making the above claim also sought a direction for payment of compensation of Rs. One crore and completion of investigation in FIR No.117 of 1993 registered under Section 307 RPC, 3/4 TADA and 3/25 Arms Act, P/S Lalpora.
2. The petitioner-appellant in the writ petition stated that his father-Taseem Ahmad Raina was an agricultural labourer. He was killed in police firing by the Border Security Forces on 27.09.1993 at Kulgam. In connection with the above ____________________________________________________________________________ LPA No.01/2020 1|Page incident FIR No.117 of 1993, as aforesaid, was registered labelling his father as a militant. It was a case of fake encounter and the petitioner-appellant is entitled for compensation. The petitioner-appellant at the relevant time was an infant and on attaining maturity he made a complaint before the State Human Rights Commission for grant of compensation and ex-gratia relief.
3. The Commission made enquiries in the matter and upon report of the Director General of Police dated 12.08.2014 to the effect that enquiries in the matter revealed that father of the petitioner-appellant was a militant and was killed in an encounter in connection with which FIR No.117/1993 was registered, dismissed the complaint. It observed that the investigation reveals that the deceased was a militant and had died in an encounter and that the incident had happened in the year 1993 and the Commission was approached in the year 2014 by the petitioner-appellant.
4. It is in view of the above order and non-conclusion of the investigation in relation to the above FIR that the petitioner filed the writ petition before the High Court. The writ petition has been dismissed by the impugned judgment and order dated 19.11.2019 in view of the decision of this Court dated 04.05.2016 passed in PIL No.07/2016 : J&K High Court Bar Association v. State of J&K and others, wherein it has been held that in connection with the investigation pursuant to an FIR, the appropriate remedy available to any party aggrieved is to approach the Magistrate concerned in accordance with the procedure prescribed under the Code of Criminal Procedure and there is no reason for the court to apprehend that the investigation would not be completed in a fair and reasonable manner.
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5. We have heard Mr. Mir Majid Bashir, learned counsel for the petitioner- appellant, Ms. Asifa Padroo, learned AAG for respondents 1 to 4 and 6 and Mr. Tahir Majid Shamsi, learned DSGI for respondent no.5.
6. Learned counsel for the petitioner-appellant submits that the Commission manifestly erred in dismissing the complaint of the petitioner- appellant and that the Writ Court ignored that the petitioner-appellant has made a prayer for quashing of the order of the Commission.
7. The order of the Commission is very explicit. The Commission has adopted the procedure as prescribed under the Jammu & Kashmir Protection of Human Rights Act, 1997, and got the matter enquired into. The enquiry revealed that father of the petitioner-appellant was a militant and was killed in an encounter. The said finding is supported by report submitted by the Director General of Police as well as by the Investigating Officer of the State Human Rights Commission. Accordingly, the complaint was dismissed.
8. The petitioner-appellant in the writ petition has nowhere disputed the report of the Director General of Police but submits that the report incorrectly states that the investigations pursuant to FIR No.117 of 1993 have been closed. The closure of the investigation is altogether another aspect. But the fact remains that the report that the father of the petitioner-appellant was a militant and had died in an encounter in the year 1993 which part of the report was not categorically disputed.
9. In regard to the completion of the investigation pursuant to the FIR, accepting that it may or may not have been closed but the same stands covered by the decision of the PIL referred to by the learned Single Judge. This apart if any investigation has not been fairly conducted or is not being conducted or has ____________________________________________________________________________ LPA No.01/2020 3|Page been completed in an unfair manner, the remedy to the petitioner is to approach the Magistrate concerned under Section 156 of the Code of Criminal Procedure.
10. In addition to the above, it may be pertinent to note that the incident in which the father of the petitioner-appellant was killed took place in the year 1993 and for a comparative long distance of time till 2014 none of the family members muchless the petitioner-appellant who may be a minor at the relevant time approached any authority so as to complain that he was not a militant or that the investigation pursuant to the FIR are not being conducted in a proper manner.
11. The submission of learned counsel for the petitioner-appellant that he was an infant and that his mother remarried may have some substance but the fact remains that nothing has been brought on record to indicate when the wife of the deceased remarried and why she could not approach any authority. No averment has been made as to why even the other family members of the deceased remained silent and did nothing in the matter and allowed it to be left for the petitioner-appellant to take care of it on attaining maturity. Any enquiry or investigation in respect of an incident of 1993 at this stage appears to be totally unwarranted and of no use.
12. Accordingly, in view of the aforesaid facts and circumstances, we do not find that the Writ Court has committed any error or illegality in dismissing the petition. The appeal, as such, lacks merit and is dismissed.
(SINDHU SHARMA) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Srinagar
21.09.2022
Abdul Qayoom, Secy.
Whether the judgment is reportable? Yes/No
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