Jammu & Kashmir High Court
Nazira Begum And Another vs State Gujarat & Ors. (2004) 4 Scc 158 ... on 29 May, 2012
Author: Hasnain Massodi
Bench: Hasnain Massodi
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 1258-S OF 2011 Nazira Begum And Another. Petitioners State J&K and Others Respondent !None ^M.I.Qadri Advocate General for Respondents 1to5 Honble Mr. Justice Hasnain Massodi, Judge. Date: 29.05.2012 :J U D G M E N T :
1. 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 GeneralCounsel 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.
2. Heard and perused the petition with its annexures and material available on record.
3. 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.
4. 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 under Section 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.
5. 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.
6. During the course of re-investigation, by Crime Branch, two status reports were prepared by Shri Bachan Singh Chaudhary Assistant Superintendant of Police Crime Branch on 16th January 1998 and Smt. Shikha Goyal Assistant Superintendant 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 Rangerespondent 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 sidentified 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 Superintendant 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 Superintendant 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.
7. 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.
8. 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.
9. 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 nobodys 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.
10. 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. PWs 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.
11. 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.
12. The petitioners edifice their case for reinvestigation and retrial on two status reports prepared by Shri Bachan Singh Chaudhary Assistant Superintendant of Police Crime Branch on 16th January, 1998 and Smt. Shikha Goyal Assistant Superintendant 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 ChoudharyAssistant 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.
13. Learned counsel for the petitioners while elaborating on the grounds set up in the petition have placed reliance on law laid down in Zahira Habib-Ullah H. Sheikh & Anr. Vs. State Gujarat & Ors. (2004) 4 SCC 158 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 Banerji Vs. State of West Bengal, reported at (2005) 1 SCC 115 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)
14. 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.
(Hasnain Massodi) Judge Jammu.
29.05.2012 *Y*