Gauhati High Court
Major (Now Lt. Col.) Z A Khan And 9 Ors vs The State Of Assam And Anr on 24 January, 2020
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/10
GAHC010016522020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.) 55/2020
1:MAJOR (NOW LT. COL.) Z A KHAN AND 9 ORS
S/O MAJOR HAKIM ALI (RETD), AFI BUILDING, DHOBHI TALIO, NCC
DIRECTORATE, MUMBAI 400020, MAHARASHTRA
2: NO 3183065F EX. NK KARAN SINGH
S/O- HAWA SINGH
VPO- BAMAL TEH AND DIST.- BHIWANI (HAR)
PIN- 127021.
3: JC- 490906X SUB SAHAB SINGH
S/O- KARTAR SINGH
11 JAT
C/O- 56 APO
PIN- 911211.
4: JC-315689M SUB BHIM SINGH
S/O- PREET SINGH
23 JAT
PIN- 911223.
5: NO 31895793A EX SEP ALOK PAUL SINGH
S/O- VEERPAL SINGH
395 DSC PIATT TO 16 FAD
PIN- 909716.
6: NO 3187089H EX SEP SANJAY KUMAR
S/O- SUKHPAL SINGH
1210B DSC PLATT TO 51 AREA GP
PIN- 916591.
Page No.# 2/10
7: NO 3187176W EX HAV SUBASH CHANDER SHIVRAN
S/O- PARMESHWAR SINGH
VILL.- SHIVRANA KA BAS
P.O.- NARODA TEH-LAXMANGARH
DIST.- SIKAR (RAJ)
PIN- 332311.
8: NO 3189242M EX HAV RAKESH KUMAR
VILL. AND P.O. MOJAWASH TEH AND DIST.- JHUNJHUNU RAJASTHAN
PIN- 333704
GENERAL OFFIER COMMANDING.
9: NO 3189900N EX NK BHUP SINGH
S/O- LATE SH. RAMKAR
VILL. AND P.O. NAIWA TEH AND DIST.- HISAR
HARYANA
PIN- 125037.
10: NO 3189972X EX NK NARENDER SINGH
S/O- BHAG SINGH
VILL. AND P.O. DIGHAL TEH AND DIST.- JHAJJAR
HARYANA
PIN- 124107
VERSUS
1:THE STATE OF ASSAM AND ANR
REPRESENTED BY PP, ASSAM.
2:OFFICER-IN-CHARGE
DIBRUGARH POLICE STATION
DIBRUGARH.
3:GENERAL OFFICER COMMANDING 2 MOUNTAIN DIVISION
REP. BY LT. COL. UMESH PATIL
2 MOUNTAIN DIVISION
C/O- 99 APO
Advocate for the Petitioner : MR Z KAMAR
Advocate for the Respondent : PP, ASSAM
Page No.# 3/10
Linked Case : Crl.Pet. 1500/2019
1:MAJOR (NOW LT. COL.) Z A KHAN
S/O- MAJOR HAKIM ALI (RETD.)
AFI BUILDING
DHOBHI TALIO NCC DIRECTORATE
MUMBAI- 400020
MAHARASHTRA.
2: NO 3183065F EX. NK KARAN SINGH
S/O- HAWA SINGH
VPO- BAMAL TEH AND DIST.- BHIWANI (HAR)
PIN- 127021.
3: JC- 490906X SUB SAHAB SINGH
S/O- KARTAR SINGH
11 JAT
C/O- 56 APO
PIN- 911211.
4: JC-315689M SUB BHIM SINGH
S/O- PREET SINGH
23 JAT
PIN- 911223.
5: NO 31895793A EX SEP ALOK PAUL SINGH
S/O- VEERPAL SINGH
395 DSC PIATT TO 16 FAD
PIN- 909716.
6: NO 3187089H EX SEP SANJAY KUMAR
S/O- SUKHPAL SINGH
1210B DSC PLATT TO 51 AREA GP
PIN- 916591.
7: NO 3187176W EX HAV SUBASH CHANDER SHIVRAN
S/O- PARMESHWAR SINGH
VILL.- SHIVRANA KA BAS
P.O.- NARODA TEH-LAXMANGARH
DIST.- SIKAR (RAJ)
PIN- 332311.
8: NO 3189242M EX HAV RAKESH KUMAR
VILL. AND P.O. MOJAWASH TEH AND DIST.- JHUNJHUNU RAJASTHAN
Page No.# 4/10
PIN- 333704
GENERAL OFFIER COMMANDING.
9: NO 3189900N EX NK BHUP SINGH
S/O- LATE SH. RAMKAR
VILL. AND P.O. NAIWA TEH AND DIST.- HISAR
HARYANA
PIN- 125037.
10: NO 3189972X EX NK NARENDER SINGH
S/O- BHAG SINGH
VILL. AND P.O. DIGHAL TEH AND DIST.- JHAJJAR
HARYANA
PIN- 124107.
11: GENERAL OFFICER COMMANDING 2 MOUNTAIN DIVISION
REP. BY LT. COL. UMESH PATIL
2 MOUNTAIN DIVISION
C/O- 99 APO.
VERSUS
1:THE STATE OF ASSAM AND ANR
REP. BY P.P.
ASSAM.
2:OFFICER-IN-CHARGE
DIBRUGARH POLICE STATION
DIBRUGARH.
Advocate for the Petitioner : MR. S C KEYAL
Advocate for the Respondent : PP
ASSAM
Linked Case : I.A.(Crl.) 2/2020
1:MAJOR (NOW LT. COL.) Z A KHAN
S/O MAJOR HAKIM ALI (RETD.)
AGE ABOUT 44 YEARS AFI BUILDING
DHOBHI TALIO
NCC DIRECTORATE
MUMBAI 400020
MAHARASHTRA
2: NO 3183065F EX. NK KARAN SINGH
S/O- HAWA SINGH
VPO- BAMAL TEH AND DIST.- BHIWANI (HAR)
Page No.# 5/10
PIN- 127021.
3: JC- 490906X SUB SAHAB SINGH
S/O- KARTAR SINGH
11 JAT
C/O- 56 APO
PIN- 911211.
4: JC-315689M SUB BHIM SINGH
S/O- PREET SINGH
23 JAT
PIN- 911223.
5: NO 31895793A EX SEP ALOK PAUL SINGH
S/O- VEERPAL SINGH
395 DSC PIATT TO 16 FAD
PIN- 909716.
6: NO 3187089H EX SEP SANJAY KUMAR
S/O- SUKHPAL SINGH
1210B DSC PLATT TO 51 AREA GP
PIN- 916591.
7: NO 3187176W EX HAV SUBASH CHANDER SHIVRAN
S/O- PARMESHWAR SINGH
VILL.- SHIVRANA KA BAS
P.O.- NARODA TEH-LAXMANGARH
DIST.- SIKAR (RAJ)
PIN- 332311.
8: NO 3189242M EX HAV RAKESH KUMAR
VILL. AND P.O. MOJAWASH TEH AND DIST.- JHUNJHUNU RAJASTHAN
PIN- 333704
GENERAL OFFIER COMMANDING.
9: NO 3189900N EX NK BHUP SINGH
S/O- LATE SH. RAMKAR
VILL. AND P.O. NAIWA TEH AND DIST.- HISAR
HARYANA
PIN- 125037.
10: NO 3189972X EX NK NARENDER SINGH
S/O- BHAG SINGH
VILL. AND P.O. DIGHAL TEH AND DIST.- JHAJJAR
HARYANA
PIN- 124107.
11: GENERAL OFFICER COMMANDING 2 MOUNTAIN DIVISION
Page No.# 6/10
REP. BY LT. COL. UMESH PATIL
2 MOUNTAIN DIVISION
C/O- 99 APO.
VERSUS
1:THE STATE OF ASSAM AND ANR
THROUGH PP
ASSAM.
2:OFFICER-IN-CHARGE
DIBRUGARH POLICE STATION
DIBRUGARH.
Advocate for the Petitioner : MR. S C KEYAL
Advocate for the Respondent : PP
ASSAM
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER (ORAL)
Date : 24-01-2020 Heard Mr. Z. Kamar, learned Senior counsel appearing for the petitioners as well as Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam appearing for the State/respondent No. 1.
By this Interlocutory Application No. 55/2020, the petitioners, who are Army Officers/personnel, have prayed for extension of time for their appearance as directed vide order, dated 03.01.2020, passed in I.A. (Crl.) No. 02/2020 (Arising out of Crl. Pet. No. 1500/2019), till disposal of the Anticipatory Bail Application No. A.B. 225/2020 as well as the Criminal Petition No. 1500/2019.
It may be mentioned that by filing another I.A. No. 1/2020, the petitioners prayed for quashing the order, dated 23.12.2019, passed by the learned Chief Judicial Magistrate, Dibrugarh and also the subsequent orders, dated 01.10.2019, 09.10.2019, 31.10.2019, 14.11.2019 and 28.11.2019 passed therein, on the basic ground that the aforesaid orders in Dibrugarh P.S. Case No. 410/1998 contravened the Sections 125 and 126 of the Army Act read with Section 475 Cr.P.C. as well as the statutory Rule 8 of the Criminal Courts and Court-
Page No.# 7/10 Martial (Adjustment of Jurisdiction) Rules, 1978.
In I.A. (Crl.) No. 02/2020, this Court by order, dated 03.01.2020, passed the following order:
" Heard Mr. R. Balasubramanian, learned Senior counsel, assisted by Mr. S.C. Keyal, learned ASGI appearing for the petitioners and Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam appearing for the State/respondent Nos. 1 and 2.
By this interlocutory application, the petitioners have prayed for modification of the order, dated 19.12.2019, passed in Crl. Pet. No. 1500/2019.
The applicants have stated in the petition that while passing the order, dated 19.12.2019, this Court understood the submissions made by the learned ASGI in a different perspective inasmuch as the counsel for the petitioners submitted that the petitioners submitted to co-operate and join the investigation before the investigating officer of the case since arrest is not necessitated in view of the availability of the petitioner Nos. 1 to 10 for investigation and since due sanction under Section 45 of the Cr.P.C. has not been obtained, which position is already recorded at paragraph No. 25 of the Criminal Petition read with prayer clause and the counsel had accordingly made no such submission as recorded.
Mr. R. Balasubramanian, learned Senior counsel, submits, besides the above averments made in the application, that in a similarly situated case the Hon'ble Supreme Court in CC No. 14702/2015 (Union of India & Anr. Vs. Jana & Anr.) directed the newly impleaded party, namely Brig. Kishore Malhotra shall not be arrested by the police authorities, but he will participate in the enquiry and co-operate with the investigating agency. Mr. Balasubramanian, therefore, contends that similar order may be passed in the instant petition.
Per contra, Mr. B.B. Gogoi, learned Additional Public Prosecutor, appearing for the State/respondents submits that this Court by order, dated 19.12.2019, directed the petitioners to appear before the Court of learned Chief Judicial Magistrate, Dibrugarh on 13.12.2019 and till their appearance on the aforesaid date, no coercive action shall be taken/executed against them. But, Mr. Gogoi, with reference to the order, dated 23.12.2019, passed by the learned Court below, submits, the petitioners in compliance with the said order did not personally appear before the learned Court and therefore, the learned Court refused to extend the time for their appearance and issued Non-Bailable Warrants of Arrest to compel their appearance.
Be it mentioned here that in the connected Criminal Petition No. 1500/2019, the petitioners have prayed, inter-alia, for setting aside/quashing the impugned orders, dated 1.10.2019, 09.10.2019, 31.10.2019, 14.11.2019 and 28.11.2019 passed by the learned Chief Judicial Magistrate, Dibrugarh and to restrain the respondents from taking any coercive action Page No.# 8/10 against them. Accordingly, after hearing the learned counsel for both the sides, this Court directed as follows (relevant portion):
"In the peculiar backdrop of facts and circumstances that prima facie emerge from the averments made in the petition along with the documents annexed thereto, it is provided that all the petitioners shall appear before the Court of learned Chief Judicial Magistrate, Dibrugarh on 23.12.2019 and till their appearance on the aforesaid date, no coercive action shall be taken/executed against them."
However, the petitioners have not appeared personally before the learned Court below and as such, warrants of arrest have been issued against them to compel their appearance fixing 06.01.2020 vide the order, dated 23.12.2019, passed by the learned Chief Judicial Magistrate, Dibrugarh, in Dibrugarh P.S. Case No. 410/1998. Thus, instead of complying with the aforementioned order, dated 19.12.2019, the petitioners filed a petition praying for handing over the case documents to the competent military authority citing various case laws with respect to Section 125 of Army Act and Section 475 Cr.P.C.
It may further be mentioned that the aforementioned Dibrugarh P.S. Case No. 410/1998 under Section 302/427/120B/201 of the IPC is pending investigation since 1998 for failure of the police to arrest the accused persons.
The petitioners have neither complied with the order of this Court, dated 19.12.2019, referred to above nor have specifically prayed for consideration of their bail and instead, have prayed by the instant interlocutory application for modification of the aforesaid order, dated 19.12.2019 with reference to the factual error recording of the submission made by the learned ASGI while moving the criminal petition No. 1500/2019 at the motion stage.
With a view to achieve the very purpose of the criminal petition and without, however, disputing the submission as recorded, made by the learned ASGI on 19.12.2019, in fact, his corrected new submission to the effect that " to co-operate and join the investigation before the I.O. of the case since arrest is not necessitated in view of the availability of the petitioners No. 1 to 10 for investigation and since due sanction under Section 45 of the Cr.P.C. has not been obtained" is also accepted by way of addition to the said order and accordingly, modification is made in the interest of justice as prayed for.
As no specific prayer for bail has been made, it is provided that the petitioners shall personally appear before the Court of learned Chief Judicial Magistrate, Dibrugarh on or before 28.01.2020 and till then, the execution of the warrants of arrest issued against them shall remain in abeyance by extension of the order, dated 19.12.2019, passed in Criminal Petition No. 1500/2019.
Page No.# 9/10 The petitioners shall be at liberty to file appropriate bail application, if so advised, before the appropriate Court.
With the above directions, the interlocutory application stands disposed off."
It may further be mentioned that by filing Crl. Petition No. 1500/2019, under Section 482 Cr.P.C. read with Article 227 of the Constitution of India, the petitioners have prayed for quashing the orders, dated 01.10.2019, 09.10.2019, 31.10.2019, 14.11.2019 and 28.11.2019, passed by the learned Chief Judicial Magistrate, Dibrugarh in Dibrugarh P.S. Case No. 410/1998, where, by order, dated 19.12.2019, scanned copy of the case records along with the case diary is called for fixing 28.01.2020 and the following interim order was granted:
"In the peculiar backdrop of facts and circumstances that prima facie emerge from the averments made in the petition along with the documents annexed thereto, it is provided that all the petitioners shall appear before the Court of learned Chief Judicial Magistrate, Dibrugarh on 23.12.2019 and till their appearance on the aforesaid date, no coercive action shall be taken/executed against them."
The background of the case, in brief, is that on the night of 27.08.1998, three surrendered militants were allegedly killed by accused petitioner No. 1, Major (Now Lt. Col.) Z.A. Khan and his subordinate associate Army Personnel, in a pre-planned manner, at Chowkidinghee, Dibrugarh city, whereupon a Court of Inquiry by the Army was held. The Court of Inquiry revealed their possible involvement in the incident and opined that the Army has no legal jurisdiction to try the civilians and as such, it was decided not to take over the case from the civilian authorities and accordingly, Major Z.A. Khan was released from closed arrest without prejudice to rearrest so as to ensure that ends of justice were met and total transparency was maintained, since the case evoked so much of interest in the State.
It is noticed that pursuant to the aforesaid Court of Inquiry report, the investigation by police into the case, where civilians were also allegedly involved, commenced, but in spite of various orders of the learned Chief Judicial Magistrate, Dibrugarh following the orders of this Court, neither the Army authority has handed over the petitioners to the civil investigating agency nor they have personally appeared before the Investigating Officer of the case in spite of repeated issuance of process to procure their attendance before the Investigating Officer Page No.# 10/10 to co-operate in investigation and thus, the investigation has been stalled for more than 20 (twenty) years.
This case shows the shattered history of constant defiance to the orders of Courts by the petitioners and thereby flouting the legal obligation to co-operate in investigation for years.
Therefore, the question of further extension of time for personal appearance of the petitioners, on 28.01.2020, before the Court of learned Chief Judicial Magistrate, Dibrugarh till disposal of AB No. 225/2020 and Crl. Pet. No. 1500/2019, as directed by order, dated 03.01.2020, passed in I.A. (Crl.) No. 02/2020 does not arise, when 4(four) days still left to the petitioners to comply with the aforesaid order of this Court.
Accordingly, the Interlocutory Application stands dismissed. I.A. stands disposed off.
JUDGE Comparing Assistant