Jammu & Kashmir High Court
Hans Raj Parihar & Ors. vs State Of J&K; & Ors. on 29 January, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CRTA No.28/2016 & MP Nos.01/2016, 02/2016 & 03/2016 c/w BA No. 21/2017 & MP No.01/2017;
CRTA No.29/2016 & MP Nos.01/2016, 02/2016 & 03/2016 c/w BA No. 20/2017& MP No.01/2017; &
CRTA No. 30/2016 & MP Nos.01/2016, 02/2016 & 03/2016 c/w BA No. 19/2017 & MP No.01/2017
Date of decision:-29.01.2018
Hans Raj Parihar Vs. State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s): Mr. B.S.Salathia, Sr.Advocate with Ms. Meenakshi Salathia,
Advocate, Mr. Daljeet Singh Manhas, Advocate.
For respondent (s): Mr. Raman Sharma, Dy.A.G for State.
Mr. Vipin Gandotra, Advocate, for respondents/accused.
1. The applicants- Hans Raj Parihar and others have filed three criminal transfer applications under Section 526 of the Code of Criminal Procedure, Svt. 1989, for seeking transfer of the criminal challan/cases titled State V/S Hans Raj Parihar and others from the Sessions Courts situated at Kashmir province to any Courts of competent jurisdiction at Jammu.
2. In these petitions, it has been stated that they are facing trial along with other accused for offences under section 364, 302 and 120-B RPC, in two cases before Sessions Judge, Srinagar and one before Sessions Court at Bandipur, Kashmir .
3. It is stated in Cr.T.A No.30/2016 that the applicants herein along with the proforma-Non-applicants who belong to the J&K Police Department, are facing criminal trial for the charge under Sections 302, 364 and 120-B, RPC in the case titled State V/S Hans Raj Parihar & Ors., being File No. 67/B and 53/B /Sessions, in the Court of learned Sessions Judge, Bandipur . The aforesaid Criminal Challan owes its genesis to the FIR No. 52/2006 of P/S Sumbal registered on 14.3.2006, investigation whereof culminated into the filing of the charge sheet by the Police in the Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 1 of 13 Court of learned CJM Sopoor, who committed them to the Court of Sessions Bandipur, where the learned Sessions Judge, framed charge against them and directed the prosecution to lead evidence. The prosecution is leading evidence and is still in the process of leading the evidence for last ten years and the applicants continue to be in the judicial lock up for last more than ten years now and they are languishing in the jail. It is further stated that after the last date of hearing held in the month of June, 2016, the next date of hearing was fixed on 9 th July, 2016 by the trial Court for recording the statements of prosecution witnesses , but in view of the present continuous turmoil of protests, curfew, shut-down and Hartals for last four months, following the killing of the militant commander Burhan Wani, in Kashmir, no next date has been fixed nor conveyed in as much as the applicants / under trials have not been taken to the trial court in the said criminal case. That there are seven accused persons, including the applicants herein are facing the trial in the aforesaid case, however, the remaining two accused persons namely Farooq Ahmad Gudoo and Farooq Ahmad Padder (Accused no. 3 and 4) have not been able to join as Applicants-parties to the present Transfer Application, owing to the present turmoil going on in Kashmir, as such, they have been accordingly impleaded/arrayed as Proforma Non- Applicants 2 and 3, to the present Transfer Application. It is further stated that the present Criminal Transfer Application is being filed by the petitioners herein through their next friends (excepting the petitioner no. 4, who belongs to Ganderbal), as all the petitioners are interested parties and are presently lodged in Judicial Custody at Central Jail, Srinagar, as accused, in connection with the trial of the aforesaid criminal case. Applicant had got their Vakalatnama attested from the Jail Authorities but the present Transfer Application prepared thereafter could not be got attested because of the present situation, hence the same is signed and affidavits filed in support thereof by their next friends/wives, excepting Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 2 of 13 the Non-Applicant No. 4, as no family member from his family has been in a position to travel to Jammu from Ganderbal, because of the present protests prevailing in Kashmir. That though the Applicant has been guaranteed a fair, expeditious and speedy trial under Article 21 of the Constitution of India but in the case of the Applicant the said Constitutional Guarantee has remained a dream only which is self-evident from the fact that it is almost ten years since the charge was framed by the trial court and the prosecution is yet to lead and complete its evidence. It is further stated that the frequent and long spells of protests, Bandhs and Hartals in Kashmir in the years 2010, 2016 and floods in September, 2014 coupled with the strikes of the Advocates and frequent suspension of work by the Bar and the lackadaisical approach of the prosecution and too much leniency and indulgence on the part of the trial court favouring the prosecution, has adversely affected the progress and speed of the trial, which tantamount to the denial of the right of expeditious and speedy trial of the Applicants. Left at this speed, the trial is not reasonably to conclude in next another one more decade and the applicants are suffering the incarceration in the jail. That it has taken the prosecution almost four years to complete the examination of the PWs-Uttam Chand and Mohd. Asgar Bhat, because of its casual approach and the dilly-dallying tactics of the prosecution witness. It is further stated that hostile and surcharged local atmosphere in entire Kashmir against the applicants, because of being Police Officers/Police Personnel, the Media Hype and Media Trial of the case held as Fake Encounter Case, coupled with the hostility of the local Bar against the Applicants and the oral Resolution of the local Bar not to conduct the case of the accused persons, compelling the Applicants especially the Applicants no. 1 and 2 to engage their Advocates from Jammu for conduct of their defence, undoubtedly establishes the fact that fair and impartial inquiry/trial cannot be held in the criminal court of learned Sessions Judge, Srinagar, subordinate to this Hon'ble Court. That Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 3 of 13 the applicants herein have lost the hope and faith of getting a fair, expeditious and speedy trial, as shall be borne out from the interim orders of the record of the trial court for the last ten years especially from May, 2007 to June, 2016.
4. The applicants in Cr.T.A. No.29/2016 has stated that they along with five others are facing trial for offences under Sections 364, 302 and 120- B RPC before Sessions Judge Srinagar; it is stated that the applicants herein along with the proforma-Non-applicants, who belong to the J&K Police Department, are facing criminal trial for the charge under Sections 302, 364 and 120-B, RPC in the case titled State V/S Hans Raj Parihar & Ors., being File No. 144/2/Session, in the Court of learned Sessions Judge, Srinagar. The aforesaid Criminal Challan owes its genesis to the FIR No. 04/2007 of P/S Zaidibal, registered on 22.02.2007, investigation whereof culminated into the filing of the charge sheet by the Police in the Court of learned CJM, Srinagar on 13.04.2007 wherein besides the petitioners and proforma respondents five more persons came to be arrayed as accused namely 1. Col. Vikram Singh Co 13 RR, 2. Adjutant V.K. Sharma, 3. Maj. Reshi, 4. Puran Singh JCO and 5. Naik Satyavan (All Army Personnel). That since the challan came to be filed by the Police in a most slip hood manner, as such, the Army authorities requested the learned CJM to return the challan to the Police for complying with mandatory provisions of law. The learned CJM in terms of his order dated 19.07.2007 was of the view that he was not competent to do so in view of his powers under Section 205-D Cr.P.C., as such, dismissed the application and the same was upheld by the learned Sessions Judge, Srinagar vide order dated 11.09.2007. It is further stated that aggrieved by the order of the Court of learned Sessions Judge, Srinagar, the Army Authorities filed a petition under Section 561-A Cr.P.C (No 34 of 2008) before the Hon'ble High court Srinagar against the same and the Hon'ble High Court was pleased to stay the proceedings Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 4 of 13 in the case/trial and it was only in the year 2013 that after the said stay was vacated by the Hon'ble High Court and the Army Personnels left with no other option opted for the Trial of Army Personnels by Army Authorities before the Court of learned CJM, Srinagar the above said challan came to be bifurcated and the trial of the petitioners and proforma respondents commenced. That right from then, the prosecution is leading evidence and is still in the process of leading the evidence and only 32 witnesses have been cross examined till date and still 51 witnesses are left and the applicants continue to be in the judicial lock up for last ten years now and they are languishing in the jail. It is further stated that the last date of hearing held in the month of June, 2016 by the Trial Court for recording the statement of prosecution witnesses, but in view of the present continuous turmoil of protests, curfew, shut-down and Hartals for last four months, following the killing of the militant commander Burhan Wani, in Kashmir, no next date has been fixed nor conveyed in as much as the applicants / under trials have not been taken to the trial court in the said criminal case. That there are six accused persons, including the applicants herein are facing the trial in the aforesaid case, however, the remaining four accused persons namely Farooq Ahmad Gudoo, Tariq Ahmed Lone, Manzoor Ahmed and Mohd. Ashraf Khan (Accused no. 3, 4, 5 and 6), have not been able to join as Applicants-parties to the present Transfer Application, owing to the present turmoil going on in Kashmir, as such, they have been accordingly impleaded/arrayed as Proforma Non- Applicants 2, 3, 4 and 5 to the present Transfer Application. It is further stated that the present Criminal Transfer Application is being filed by the petitioners herein through their next friends, as all the petitioners are interested parties and are presently lodged in Judicial Custody at Central Jail, Srinagar, as accused, in connection with the trial of the aforesaid criminal case. The Vakalatnama of the Applicants could not be got attested because of the present situation, hence the same is signed and Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 5 of 13 affidavits filed in support thereof by their next friends/wives. That though the Applicants have been guaranteed a fair, expeditious and speedy trial under Article 21 of the Constitution of India but in the case of the Applicants the said Constitutional Guarantee has remained a dream only which is self-evident from the fact that it is almost ten years since the charge was framed by the trial Court and the prosecution is yet to lead and complete its evidence. It is further stated that the frequent and long spells of protests, Bandhs and Hartals in Kashmir in the years 2010, 2016 and floods in September, 2014 coupled with the strikes of the Advocates and frequent suspension of work by the Bar and the lackadaisical approach of the prosecution and too much leniency and indulgence on the part of the trial court favouring the prosecution, has adversely affected the progress and speed of the trial, which tantamount to the denial of the right of expeditious and speedy trial of the Applicants. Left at this speed, the trial is not reasonably to conclude in next another one more decade and the applicants are suffering the incarceration in the jail. That it has taken the prosecution almost three years to complete and only 13 witnesses out of 78 witnesses cited in the challan filed by the prosecution, because of its casual approach and the dilly-dallying tactics of the prosecution witnesses. It is further stated that hostile and surcharged local atmosphere in entire Kashmir against the applicants, because of being Police Officers/Police Personnel, the Media Hype and Media Trial of the case held as Fake Encounter Case, coupled with the hostility of the local Bar against the Applicants and the oral Resolution of the local Bar not to conduct the case of the accused persons, compelling the Applicants especially the Applicants no. 1 and 2 to engage their Advocates from Jammu for conduct of their defence, undoubtedly establishes the fact that fair and impartial inquiry/trial cannot be held in the criminal court of learned Sessions Judge, Srinagar, subordinate to this Hon'ble Court. That the applicants herein have lost the hope and faith of getting a fair, Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 6 of 13 expeditious and speedy trial, as shall be borne out from the interim orders of the record of the trial court for the last ten years especially from May, 2007 to June, 2016.
5. The applicants have also filed third petition Cr.T.A. No. 28/2016 stating that they and others are facing trial for offences under Sections 364, 302 and 120-B RPC before Sessions court , Srinagar .It is stated that the applicant herein along with the proforma-Non-applicants 2 and 3 who belong to the J&K Police Department, are facing criminal trial for the charge under Sections 302, 364 and 120-B, RPC in the case titled State V/S Hans Raj Parihar & Ors., being File No. 255/Session, in the Court of learned Sessions court Srinagar . The aforesaid Criminal Challan owes its genesis to the FIR No. 6/2007 of P/S Batmallo, registered on 23.1.20007, investigation whereof culminated into the filing of the charge sheet by the Police in the Court of learned CJM, who committed the same to Session Court Srinagar , wherein the trial had already commenced after framing of charge in 2007 . It is further stated that the last date of hearing held in the month of June, 2016, by the Trial Court for recording the statement of prosecution witnesses, but in view of the present continuous turmoil of protests, curfew, shut-down and Hartals for last four months, following the killing of the militant commander Burhan Wani, in Kashmir, no next date has been fixed nor conveyed in as much as the applicants/under trials have not been taken to the trial court in the said criminal case. That there are seven accused persons, including the applicants herein are facing the trial in the aforesaid case, however, the remaining accused persons namely Farooq Ahmad Gudoo and Farooq Ahmad Paddar, have not been able to join as Applicants-parties to the present Transfer Application, owing to the present turmoil going on in Kashmir, as such, they have been accordingly impleaded/arrayed as Proforma Non-Applicants 2 and 3, to the present Transfer Application. It is further stated that the present Criminal Transfer Application is being filed by the petitioners herein Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 7 of 13 through their next friends, as all the petitioners are interested parties and are presently lodged in Judicial Custody at Central Jail, Srinagar, as accused, in connection with the trial of the aforesaid criminal case.. It is further stated that the frequent and long spells of protests, Bandhs and Hartals in Kashmir in the years 2010, 2016 and floods in September, 2014 coupled with the strikes of the Advocates and frequent suspension of work by the Bar and the lackadaisical approach of the prosecution and too much leniency and indulgence on the part of the trial court favoring the prosecution, has adversely affected the progress and speed of the trial, which tantamount to the denial of the right of expeditious and speedy trial of the Applicants.
6. Interim order dated 26.10.2016 passed in Cr.T.A 28/2016, it reveal that in all these petitions, a conjoint order for filing of objections has been passed.
7. On 10.01.2017, objections have been filed by non-applicant No. 1 in one of applications, wherein it is stated that on 05.10.2006, the non-applicant Police Station received information from Intizamia Committee Masjid Aharif Alamgaribazar through Mohd. Iqbal Dar, S/o Ali Mohd. Dar, R/o Sahribaht Alamgaribazar to the effect that cleric of Thatri Masjid Sharif namely Showkat Ahmad Katria, S/o Noor Alam Kataria, R/o Banihal Nowkote went missing after Ashia prayers on 04.10.2006 from Thatri Masjid Alamgaribazar. Upon the receipt of said information, a missing report was entered in daily diary vide No. 09, dated 05.10.2006 and search was started. That during investigation of the case FIR No. 06/2007 of Police Station, Batamaloo it came to surface that 13 RR Army Personnel, SOG Sumbal and Ganderbal had kidnapped Showkat Ahmad 4th 5th Katria during intervening night of - October, 2006 from Alamgaribazar and killed him in a fake encounter at Bazipora Ajas and was declared as Abu Zahid, R/o Karachi, Pakistan and subsequently missing file was converted into case FIR No. 04/2007, U/s 364,302,120-B Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 8 of 13 RPC. Accordingly, a challan of the case was presented before the learned CJM, Srinagar on 22.02.2007 and subsequently, on 12.04.2007, the learned CJM, Srinagar committed the case for trial to learned Principal District and Sessions Judge, Srinagar and the case is sub judice before the Hon'ble court. It is further stated that there are 83 prosecution witnesses in the case, out of which 33 witnesses have been examined by the Hon'ble Court so far. That out of the remaining 50 witnesses including civilian witnesses, 48 witnesses belong to Kashmir province and in the event of the transfer of the trial of the case to a court of competent jurisdiction either at Jammu or elsewhere outside Kashmir province, it would be difficult for the prosecution to arrange the presence of the said prosecution witnesses for recording of their respective testimony and the same is likely to not only delay the trial but also put the said witnesses to extreme hardship and discomfiture. That out of the six accused persons, four accused persons belong to Kashmir Valley and it would again be very difficult for the prosecution to make the presence of the accused possible on each and every date of hearing at a place which is far off from their place of present lodgement. That in case the trial of the case is transferred the same is not going to protract the disposal of the challan but also likely to make the trial more cumbersome besides inconveniencing the witnesses to a large extent and making it difficult for the prosecution to manage the logistics for presence of accused as well as that of witnesses at a place other than the place of the current trial. That the applicants have no case or cause for the transfer of the criminal case from Srinagar. The averments made in the application neither justify nor warrant the transfer of the said criminal case. That the present application is devoid of merits and same deserves to be dismissed.
8. Status reports of all the cases were also called. Same has been filed on 06.10.2017 by State Counsel. From status reports, it reveals that in FIR No.52/2006 u/s 302/120-B RPC of P/S Sumbal, pending before Sessions Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 9 of 13 Judge Bandipore, out of 78 prosecution witnesses only 12 have been examined, maximum numbers of rest of witnesses are from valley; In FIR no.6/2007 u/s 302/364/120-B RPC-P/S Batmaloo pending before Pr. Sessions Judge,Srinagar, out of 85 witnesses 84 have been examined; In FIR no.4/2007 u/s 302/120-B RPC P/S Zaidibal pending before Pr. Sessions Judge, Srinagar in which out of out of 83 witnesses, 49 witnesses have been examined. Status report further reveals that in FIR no.4/2007 u/s 302/120-B RPC P/S Zaidibal, all the rest of witnesses are official witnesses.
9. I have considered the rival contentions and law on the subject. Section 526 of Cr.P.C. reads as under :-
"526. High Court may transfer case or itself try it.- (1) whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto ; or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same; or
(d) that an order under this Section will tend to the general convenience of the parties or witness ; or
(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code, it may order-
(i) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence ;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from. a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction ;
(iii) that any particular case or appeal be transferred to and tried before itself; or
10. From the bare perusal of this section, it is evident that High Court has power to transfer criminal case from one session's division to another Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 10 of 13 session's division on the grounds that a fair, speedy and impartial inquiry or trial cannot be held in any subordinate criminal court; that is for the general convenience of the parties or witnesses. Further Criminal case can be transferred when it appears to the High Court that an order about such transfer can be expedient for ends of justice and for promotion of ends of justice. These are some of valid grounds for transfer. There are also other grounds which the High Court can think proper in the facts and circumstances of particular case.
11. In Abdul Nazar Madani v. State of T.N. reported in (2000) 6 SCC 204 has ruled that:-
"...The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard-and-fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society."
12. In present case, it is fact that in Kashmir there are continuous turmoil of protests, curfew, shut-down and Hartals; so fair and speedy trial is not possible. Speedy trial is a part of reasonable, fair and just procedure guaranteed under Article 21. This Constitutional right cannot be denied in any eventuality. As is evident already more than ten years have passed and trial in all cases is still pending.
Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 11 of 1313. In two cases (FIR no.6/2007 u/s 302/364/120-B RPC-P/S Batmaloo and FIR no.4/2007 u/s 302/120-B RPC P/S Zaidibal which are pending before Pr. Sessions Judge, Srinagar) trial is almost complete, and even Mr. Vipin Gandotra, counsel for respondents/accused has stated at bar that he has no objection in case these cases are transferred at any of court at Jammu. So no prejudice shall be caused to anyone.
14. In view of above discussion, two challan arising out of FIR nos.4/2007 and 6/2007 pending before Sessions Judge, Srinagar are withdrawn and stand transferred to Pr. Session Judge, Jammu for further proceeding; Pr. Sessions Judge, Jammu may try the cases or may further transfer to any other Sessions Court of competent jurisdiction.
15. But so far case in FIR no.52/2006 u/s 302/120-B RPC of P/S Sumbal, pending before Sessions Judge Bandipore is concerned, transfer application in the regard stands dismissed at this stage, as out of 78 prosecution witnesses only 12 have been examined and maximum numbers of rest of witnesses are resident of local area and in case said challan is transferred, it may cause inconvenience to them (witnesses). Petitioner may file fresh application for transfer after local witnesses are examined.
16. These three transfer applications are disposed of accordingly.
17. There are three regular bail petitions BA No. 19/2017, BA No. 20/2017 BA No. 21/2017 moved by petitioner-Hans Raj for grant of regular bail in all three criminal cases; out of these three, two applications have been filed in two challan which have been transferred to Pr. Sessions Judge, Jammu; these bail applications are also transferred to said Court with direction to transferee court to decide the same in accordance with law. Third bail application has been moved in challan pending before Sessions Court Bandipore, so that petition is transferred to Pr. Sessions Judge Bandipore, with direction to decide the same in accordance with law.
Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 12 of 1318. Further from the perusal of transfer applications, it reveals that this Court has already granted interim bail in all three cases to petitioner Hans Raj Parihar on 15.11.2016; the said interim bail has already been extended from time to time. So that interim bail shall remain in force, till regular bail petitions, which have been transferred to respective courts, are decided.
19. All the petitions are disposed off accordingly.
(Sanjay Kumar Gupta) Judge Jammu 29.01.2018 Pawan Angotra This judgment is pronounced by me in terms of Rule 138(3) of the Jammu & Kashmir High Court Rules, 1999.
( Dhiraj Singh Thakur ) Judge Jammu 29.01.2018 Narinder Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 13 of 13