Jammu & Kashmir High Court - Srinagar Bench
Mst. Zaitooni And Another vs State Of U.P. And Others on 19 February, 2013
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP No.1312 of 2011 IA No.2082of 2011 Mst. Zaitooni and another Petitioners State of J&K and others Respondents !Mr. Z.A.Qureshi, Advocate Mr. M.I.Qadiri, Advocate General ^Mr. K.S. Johal, Senior Advocate Mr. K. S. Wazir, Advocate Honble Mr. Justice Hasnain Massodi, Judge Dated: 19/02/2013 : J U D G M E N T :
1. On 1st March 2001, an Army Convoy was ambushed near T.B. Hospital, Janglat Mandi, Anantnag. The ambush led to brief encounter between Army and militant(s). Colonel J.P. Janu and Rfn Ganesh Kumar got killed on spot in the cross firing. Brigadier Bikram Singh, Sector Commander Sector-I, Rashtriya Rifles and other two army personnel, travelling in the Army Convoy, sustained injuries. The encounter also claimed life of two civilians, namely Mohammad Shafi Shah son of Ghulam Rasool Shah resident of Hazratbal, Anantnag and Abdul Ahad Sheikh SIL/O Ghulam Mohammad Sheikh R/o Janglat Mandi, Anantnag. Shri Aejaz Ahmad Bhat son of Ghulam Mohammad Bhat resident of S.K. Colony, Anantnag, was injured in the cross firing. One more person a non local also got killed in the encounter.
2. The occurrence led to registration of case FIR No.72 of 2001 under Section 302, 307, 427 RPC, 7/25 Arms Act, Police Station Anantnag. The Investigating Officer identified the non-local person, killed in the cross firing, as Mohi-uddin Afghani alias Muteen Chacha resident of Malakand, Frontier Province, Pakistan. He, on the strength of investigation conducted, found him to have ambushed the army convoy and therefore, responsible for the occurrence and to have been killed in the retaliatory fire opened by the armed forces in self-defence. The dead bodies of civilians namely Mohammad Shafi Shah and Abdul Ahad Sheikh, were handed over to the next of kins. The dead bodies of Colonel J.P. Janu and Rfn Ganesh Kumar, handed over to the army, so that these were handed over to their legal heirs. The dead body of alleged slain militant Mohi-uddin Afghani alias Muteen Chacha, was buried by police in a local graveyard.
3. The Investigation in case FIR No.72/2001, was concluded as proved against Shri Mohi-uddin Afghani alias Muteen Chacha and charge-sheet presented before the Chief Judicial Magistrate, Anantnag, on 27th April 2001. Learned Chief Judicial Magistrate committed the case to the court of Sessions. Learned Sessions Judge, Anantnag, on 30th May 2001, by a brief order, held the case to have abated and directed it to be consigned to records. The Trial Court order may be noticed:
At the outset ld. PP gave a statement informing the court that the accused has since died and his statement to that effect was recorded. The Ld. C.J.M. while committing the case to this court has also recorded in the order dated 27.4.2001 that accused is dead. In these circumstances the case abates. Let the file be consigned to records. This, however, does not end the matter.
4. Shri Tanveer Ahmad claiming to be associated with Youth Empowerment Services of Kashmir (YES Kashmir) a Non- Governmental Organisation (NGO), with its Head Office at Jana Hassan Complex, Ganjiwara, Anantnag, on 13th June 2011, addressed letter No.YK/FE-2001-01/ Urgent/2011 to Deputy Inspector General of Police, South Kashmir Range (SKR), Anantnag, alleging therein that the incident of 1st March 2001 near T.B. Hospital, Janglat Mandi, Anantnag, was a fake encounter, managed by Sector I, located at Khanabal, Anantnag, in connivance with some surrendered militants, headquartered at Janglat Mandi, to get reward, promotions and other benefits and that Commander of Sector-I was directly involved in the incident. It was alleged that 70 years old civilian, killed in the incident, was not a foreign militant as dubbed by the police but a local who because of his age could not be expected to have ambushed the armed forces. Shri Tanveer Ahmad asked for reinvestigation of the incident claimed by him to be a fake encounter, assuring full cooperation from his organisation.
5. The letter addressed by Shri Tanveer Ahmad to Deputy Inspector General of Police, South Kashmir Range, Anantnag, appears to have evoked response from the Officer in the shape of a letter bearing No.CS/SKR/54/54-39/Ang/2011/412 dated 20th June 2011, addressed to Senior Superintendent of Police, Anantnag, seemingly, asking for his report in the matter. In the meantime, the letter addressed by Shri Tanveer Ahmad to Deputy Inspector General of Police, South Kashmir Range, Anantnag, came to the notice of a local daily Kashmir Monitor published from Srinagar. Excerpts from the letter were published in its Issue dated 23rd June 2011.
6. Senior Superintendent of Police, Anantnag, in response to his letter No.CS/SKR/54/54-39/Ang/2011/412 dated 20th June 2011, vide No.Rd/CR-IV/11/ 18672 dated 16.07.2011 submitted a report to Deputy Inspector General of Police, South Kashmir Range, Anantnag, reiterating that 3rd civilian killed in the exchange of fire near T.B.Hospital, Janglat Mandi, Anantnag on 1st March 2001 was Mohi-uddin Afghani alias Muteen Chacha resident of Malakand, Frontier Province, Pakistan, who on investigation of the occurrence, was found to have laid ambush on the army convoy and got killed in the exchange of fire. The Deputy Inspector General of Police, South Kashmir Range, Anantnag, on Senior Superintendent of Police, Anantnags report itself wrote the instruction:
summon the complainant (NGO) and examine him and report.
7. The allegations that the Janglat Mandi incident of 1st March 2001 was a fake encounter, engineered by Sector I, in connivance with surrendered militants, attracted the attention of media and as per the record placed on file, appeared in local dailies Kashmir Times, Mission Kashmir and Aftab on 10th July 2011, in Kashmir Monitor on 27th July 2011, in Greater Kashmir, Buland Kashmir and Hind Samachar on 10th August 2011, and in Khidmat on 18th August 2011.
8. Deputy Inspector General of Police, South Kashmir Range, Anantnag, vide No.Pros/Clt/11/9944 dated 9th August 2011, acting on a communication addressed by Shri Tanveer Ahmad, in light of report No.Rd/CR-IV/11/18672 dated 16.07.2011, directed Senior Superintendent of Police as under:
Please entrust the matter to a Gazatted Officer who will examine the complainant party and also verify the matter further. Report accordingly be sent to this office without further delay. No action appears to have been taken by Senior Superintendent of Police, Anantnag on the aforesaid instructions. The respondents have not placed on record copy of the report, if any, submitted by Senior Superintendent of Police, Anantnag, or any other document to show that direction dated 9th August 2011 was complied with.
9. Shri Tanver Ahmad, now styling himself as President of YES Kashmir NGO, on 13th August 2011, addressed a communication to President of India, reiterating his earlier stand taken in letter dated 13th June 2011, addressed to Deputy Inspector General of Police, South Kashmir Range, Anantnag, and complaining that no action was taken by the concerned Deputy Inspector General in the matter. He, expressing hope that the matter would be investigated, sought intervention to restore faith of people in rule of law. However by the time Shri Tanveer Ahmad addressed aforesaid communication, the Deputy Inspector General of Police, South Kashmir Range, Anantnag, had already vide No.Pros/Clt/11/9944 dated 9th August 2011, issued instructions in the matter.
10. Mst. Zaitooni, claiming to be mother of deceased Abdullah Bhat, and Mst. Jaani Begum, introducing herself as sister of deceased, in the meantime on 7th October 2011, filed writ petition on hand and on the strength of the averments made in the petition, seek following relief:
i. constitute a Special investigation team to investigate the incident which took place on 01.03.2001 at Janglat Mandi, Anantnag in which son of Petitioner No.1 and brother of petitioner No.2 was killed who was branded as foreign militant by the name of Ghulam Mohi-ud-din alias Muteen Chacha;
ii. The Sr. Superintendent of Police, Anantnag including the Sr. Superintendent of Police who was holding the post of SSP, Anantnag on 01.03.2001 and SHO, Police Station, Anantnag, holding the post on 01.03.2001 be directed to produce before the Honble Court the complete record file of the incident of 01.03.2001 including the photograph of the deceased whose dead body was taken by Incharge Police Station, Anantnag on 01.03.2001.
The SSP and SHO of the time (01.03.2001) be directed to identify the grave where the dead body of alleged foreign militant namely Ghulam Mohi-ud-din alias Mateen Chacha was buried so that apart from conducting DNA test the petitioners will come to know where the deceased is buried. iv. The respondents Union of India and the State of Jammu & Kashmir be directed to pay compensation of Rs.60.00 lacs to the petitioner, the son and sister of the deceased.
11. Petitioners case is that deceased a resident of Kalaroos, Kupwara was earning his livelihood by working as labourer at Anantnag and would visit the petitioners after interval of 02-03 months, stay with them for some time and return to Anantnag; that as deceased did not visit his house in the month of March 2001, petitioner No.2 and other relatives of deceased went to Anantnag to enquire about the deceased and were told by the locals that a person resembling the deceased was killed in encounter on 1st March 2001 near T.B. Hospital, Janglat Mandi, Anantnag. Petitioners claim to have on that very day visited Sector-I, Headquarter Rashtriya Rifles, and to have been harassed and chased away by Rashtriya Rifles personnel and renegades; that they went to the local police station but were not given any cooperation and the local police even refused to identify the grave of the deceased, dubbed by army and police as foreign militant. Petitioners insist that person killed was not a foreign militant but Shri Abdullah Bhat, a resident of Rang Bala, Machil/ Badi Bahak, Kalaroos. They claim that mother of deceased (petitioner NO.1) tried her utmost to get matter investigated and took help of Youth Empowerment Services of Kashmir (YES Kashmir Non Governmental Organisation, who projected petitioners case without any tangible results. Petitioners claim to have submitted an application on 10th September 2011 to Inspector General of Police, Kashmir, with a prayer that grave of deceased be identified and necessary DNA tests conducted; that the application was sent to Senior Superintendent of Police, Kupwara, who did not report back to Inspector General of Police. They complain that though Deputy Inspector General of Police, South Kashmir Range, Anantnag, had asked Senior Superintendent of Police, Anantnag, to entrust the matter to Gazetted Officer, yet no action was taken till date, constraining petitioners to file writ petition. They allege that after Shri Abdullah Bhat was killed at Anantnag, Senior Superintendent of Police Anantnag, Station House Officer Police Station Anantnag, Brigadier Bikram Singh Sector-I Rashtriya Rifles, hatched a conspiracy and in execution of the conspiracy, buried deceased Abdullah Bhat at some unknown place, registered a fake First Information Report, labelled deceased Abdullah Bhat as foreign militant, presented charge-sheet and on the statement of Public Prosecutor got it consigned to records. It is pleaded that Police Station Anantnag did not take steps to get the body of deceased identified and on the basis of torn identity card, labelled him as foreign militant, named Mohi-uddin Afghani alias Mutteen Chacha. The petitioners pray that Special Investigation Team be constituted to reinvestigate the matter, identify the grave, in which deceased was buried, conduct DNA Test, and in light of the outcome of such reinvestigation, a case be registered at Police Station Anantnag against the police and army officers who in execution of conspiracy identified deceased Abdullah Bhat son of petitioner No.1 and brother of petitioner No.2 as a foreign militant to collect reward and promotions. The petitioners also claim compensation to the tune of Rs.60.00 Lacs on account of death caused to Shri Abdullah Bhat.
12. The respondents 1 and 3 resist writ petition on the grounds of delay and laches as also failure of petitioners to question the Trial Court judgement dated 30th May 2001. It is denied that Colonel J.P. Janu and Rfn Ganesh Kumar and others lost their lives in a fake encounter. It is insisted that loss of life and property near T.B.Hospital, Janglat Mandi, on 1st March 2001, was a direct result of attack by the militant on army convoy proceeding from Khandura to Khanabal and the retaliatory fire opened by the army and that the encounter had taken place, was evident from the fact that a senior army officer was killed in the encounter and others including Brigadier Bikram Singh injured; that slain militant, on the basis of recoveries made from his person, was identified as Mohi-uddin Afghani alias Muteen Chacha and buried in local graveyard in accordance with religious rites. Respondents 1 and 3 have taken a clear stand that it would not be possible to identify the grave of a deceased that too after a gap of ten years as a number of unidentified militants have been buried in the graveyard and the locals, who participated in the burial, were not in a position to identify the grave. It is pleaded that the representatives of NGO YES Kashmir, were associated with the inquiry by Superintendent of Police and they failed to submit any proof in support of their stand. It is denied that petitioners or anyone on their behalf, approached local police after occurrence of 1st March 2001 and that the issue was raised by NGO YES Kashmir, run by ex militant namely Khurshid Ahmad Mir, involved in case FIR No.76/2003 under section 392 RPC 7/25 Indian Arms Act P/S Anantnag and FIR No.312/2011 under section 354, 323 RPC P/S Anantnag, for his personal gains and to settle scores with the local police. The respondents 1 & 3 insist that the matter, having assumed finality on 30th May 2001, when the charge-sheet was consigned to records by Trial Court, its reinvestigation was not warranted.
13. The petition is opposed by respondent No.2 on the grounds that writ jurisdiction of the Court under Article 226, Constitution of India, cannot be invoked without exhausting the remedies available under Code of Criminal Procedure. The writ petition is said to suffer from long and incurable delay and laches. It is pleaded petitioners did not place on file any document so as to indicate that they ever agitated the claim after 1st March 2001 till communication dated 13th June 2011 was addressed by NGO YES Kashmir to Deputy Inspector General of Police, South Kashmir Range, Anantnag, or to establish that deceased was related to petitioners. The respondent No.2, in para 3 of his Reply, has given factual events commencing from 1st March 2001 to 30th May 2001, i.e. the date charge-sheet was consigned to records. Respondent No.2 has controverted all the factual averments made in the petition and insists that a foreign militant disguised as beggar on 1st March 2001 at 3.40 PM, when the army convoy briefly stopped near T.B. Hospital, Janglat Mandi, Anantnag and Colonel J. P. Janu, the then CO of 120 Infantry Battalion (TA) Bihar alighted from his vehicle to pay compliments to Commander, Sector-I, Rashtriya Rifles, before proceeding to his Unit location, opened fire, killing J. P. Janu and Rfn Ganesh Kumar and seriously injuring Commander, Sector-I, Rashtriya Rifles Brigadier Bikram Singh and Lieutenant B.S. Bajwa of HQ, Sector-I, Signal Company. It is pleaded that the injured army personnel were evacuated and shifted to 92 Base Hospital, Srinagar; that a case was registered at Police Station Anantnag as FIR No.72/2001 and during investigation an identity card was recovered from the person of slain militant, identifying him as Ghulam Mohi-uddin alias Muteen Chacha of H.M. Group resident of Malakand, Pakistan. It is denied that Abdullah Bhat resident of Kalaroos, Kupwara, was killed in the aforesaid incident or in any other incident on 1st March 2001 at Janglat Mandi, Anantnag. It is denied that petitioners or either of them visited the Headquarter Sector-I, Rashtriya Rifles, or any law enforcement agency, to get the case FIR No.72/2001, reinvestigated. It is denied that any benefit accrued to the deceased or injured army personnel out of the encounter in question. The petitioners are said to have failed to place on file any document which would prima facie lead to the conclusion that deceased had any relation with the petitioners. It is reiterated that petitioners, if at all aggrieved, were to press into service the relevant provisions of Criminal Procedure Code rather than invoking extra ordinary writ jurisdiction of the court.
14. I have gone through the pleadings and heard learned counsel for the parties.
15. The grounds taken by respondents to seek dismissal of writ petition may be summarised as under:
i) that petitioners, having failed to press into service the devices available under Criminal Procedure Code to get their grievances redressed or question the Trial Court judgement dated 30th May 2001, cannot invoke extra ordinary writ jurisdiction of the Court;
ii) that petitioners have failed to place on file any record as would prima facie lend support to their claim that the deceased was Shri Abdullah Bhat, a resident of Kalaroos Kupwara; and
iii) that the claim set out in the petition is stale and belated and Court cannot, more than a decade after investigation has been concluded and charge sheet submitted on such conclusion, finally disposed of, reopen the matter or direct its reinvestigation.
16. Let us deal with the grounds urged ad seriatim.
17. An overview of the scheme under Code of Criminal Procedure would reveal that its object is to ensure that an accused does not go unpunished because of faulty investigation or inefficient prosecution. The Code clothes the Magistrate, Trial Judge and even Appellate Court with sufficient powers to be exercised at different levels and different stages to ensure that an accused does not go scot-free except on the ground of his innocence or non-involvement in the alleged occurence.
18. The tools available under Code of Criminal Procedure to a person aggrieved of omissions or commissions committed by a police officer in crime detection/ investigation, may take any of the following forms, depending upon the stage at which inaction or irregularity in investigation is detected and voiced. In case of failure on part of Station House Officer, Incharge of a police station, to register a case or refuse its registration, the aggrieved may, in terms of Section 154(3) of the Code, approach Superintendent of Police of the District for a direction to the concerned police officer to register and investigate the case. Where Section 154(3) of the Code is of no help to the aggrieved, he may fall back on Section 156(3) of the Code, approach the Magistrate with an application for a direction to police officer to register and investigate the case. Where the grievance is not as regards failure or refusal to register a case but the mode and manner in which investigation is being conducted, aggrieved may approach the Magistrate for a direction to Investigating Officer as may be required, in the facts and circumstances of the case, for smooth, efficient and objective investigation of the case. A holistic view of Part V Chapter XIV of the Code would reveal that the Magistrate at no point of time loses control over the investigation of an offence. It may be pointed out that once case is registered, copy of FIR is to be dispatched to the local Magistrate with due dispatch, so that Magistrate is aware of registration of the case and may seek a report or issue direction for timely and efficient investigation of the case. If Magistrate finds that the investigation is not being conducted satisfactorily, he may, in exercise of powers under Section 156(3) of the Code, issue a direction to the police to properly investigate the matter. The Magistrate again gets chance to see the progress of the investigation when a person arrested during investigation is brought under Section 167 of the Code before the Magistrate for remand. The Magistrate, while authorising or declining remand, has an occasion to go through the material collected by the investigating agency, the direction in which the investigation is proceeding and issue directions for smooth, impartial and objective investigation of the case.
19. The Supreme Court in Sakiri Vasu versus State of U.P. and others (2008 (2) SCC 409), elaborating on the role expected under the Code to be played by a Magistrate during investigation, has held the Magistrate to have very wide powers to direct registration of FIR and to ensure proper investigation. It would be apt to reproduce the following observations made by the Court:
17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).
27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.
20. Once the investigation is concluded and final report in terms of Section 169 of the Code or charge-sheet envisaged under Section 170 of the Code produced in terms of Section 173 of the Code before the Magistrate, the power of the Magistrate to go through the investigation conducted, so as to satisfy himself whether investigation has been properly conducted, does not come to an end.
21. Where the investigation is closed as not proved or untraced and final report, in terms of Section 169 of the Code, produced before the Magistrate, he on going through the material collected during investigation, may disagree with the conclusions drawn by the Investigating Officer and take cognisance on the report and issue process or issue notice to the complainant i.e. person at whose instance the case was registered or any person like an injured, having interest in the investigation, to file objections, if any, to the report. Where such objections are filed, the Magistrate may very well take cognisance and issue process and proceed with the matter.
22. Where investigation is concluded as proved against accused and charge-sheet presented, the Magistrate may, in exercise of powers under Section 173(8) of the Code, direct further investigation in the matter. Such a direction can be passed suo moto or on an application of complainant.
23. The trial court during trial is not under Statutory obligation to restrict itself to the evidence relied upon by Investigating Officer or witnesses listed in charge-sheet. It is well settled that Section 251-A of the Code is not controlled by the evidence or witnesses listed in the charge sheet. The trial court in terms of Section 540 of the Code has powers to summon and recall witnesses.
24. The trial comes to an end with conviction or acquittal of accused. The judgement of trial court may be questioned by either of parties in an appeal. The appellate court, in terms of Section 428 of the Code, is given power to take additional evidence for the reasons to be recorded or remand the case to the trial court and direct such additional evidence to be recorded by trial court. In Zahira Habibulla H Sheikh versus State of Gujarat (AIR 2004 SC 3114), it has been held that an application for additional evidence should not be dismissed on flimsy grounds and power given to court to be exercised, to achieve the ends of justice.
25. However, once trial concludes and appeal/revision, if any, filed against trial court judgement is also disposed of, the stage for further investigation or recording any additional evidence is over. The Magistrate, Trial Court or Appellate Court ceases to have control over the matter. The only remedy to an aggrieved is to seek reinvestigation of matter. Such a power can be exercised by the High Court, invoking its inherent powers under Section 561-A of the Code or its extra ordinary writ jurisdiction under Article 226, Constitution of India. Reference in this regard may be made to law laid down in Vinay Tyagi versus Irshad Ali alias Deepak and others (2013 AIR SCW 220). The Court, making a distinction between initial investigation, further investigation and reinvestigation, held:-
14. The initial investigation is the one which the empowered police officer shall conduct in furtherance to registration of an FIR. Such investigation itself can lead to filing of a final report under Section 173(2) of the Code and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order for investigation passed by the court of competent jurisdiction in terms of Section 156(3) of the Code.
15. Further investigation is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a further investigation.
Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as supplementary report. Supplementary report would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a reinvestigation, fresh or de novo investigation.
16. However, in the case of a fresh investigation, reinvestigation or de novo investigation there has to be a definite order of the court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct fresh investigation. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of fresh/de novo investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a fresh investigation.
26. In the present case, the matter has crossed the stages where petitioners could seek further investigation in the matter. The petition, therefore, cannot be held not maintainable on the ground that petitioners have alternative remedy and instead of invoking writ jurisdiction of this Court, should fall back on such remedy. The petition cannot be also thrown out at its threshold on the ground that petitioners ought to have filed an appeal against Trial Court order dated 30th May 2001. Neither petitioners nor Abdullah Bhat, claimed by them, their close relation, were party before Trial Court, cannot be presumed to be aware of mode and manner in which investigation shaped up and fate of proceedings emanating from the charge-sheet. The only remedy available to petitioners, in the circumstances, is to invoke inherent or extraordinary jurisdiction of this Court under Section 561-A Cr.P.C. or Article 226, Constitution of India read with Section 103, Constitution of Jammu and Kashmir. Let us now examine the exact grievance of petitioners and whether in view of the grievance voiced, relief sought can be granted in their favour.
27. The respondents case that petitioners have failed to place sufficient material on file to lend support to their claim that Shri Abdullah Bhat was related to them, was working as labourer at Anantnag, and had gone missing with effect from 1st March 2001, may not be entirely without merit. Photocopy of Ration Card (annexure B) issued in the name of petitioner No.1 does not mention name of Shri Abdullah Bhat as one of her family members. The photocopy of Voter List of 1989 (annexure C) mentions Qadir Bhat and Mst.Zaitooni as Voters in House No.88/1 and does not include Shri Abdullah Bhat as one of the Voters, and therefore, family member of Qadir Bhat deceased husband of petitioner No.1. The certificates, issued by Sarpanch, Nambardar and Village Guard Halqa Moori, Kalaroos (Annexure G), record Shri Abdullah Bhat son of Qadir Bhat resident of Rang Bala, Machil/Badi Bahak, Teeda, to have been gone missing on 10th December 2000. Petitioners have not registered a missing report with the local police station. Petitioners, on other hand, insist that Shri Abdullah Bhat son of Qadir Bhat was working as a labourer at Anantnag, used to visit them after regular interval, and was to their information working as such on 1st March 2000. The aforesaid annexures, though relied upon by petitioners, apparently cast doubt on and contradict their stand. It also does not prima facie sound convincing that petitioners, after they on 1st March 2001 or immediately thereafter mustered courage to travel all the way to Anantnag, visited Sector-I, Rashtriya Rifles and local police station, to know whereabouts of their close relation, lost interest in the matter or felt discouraged to reagitate the matter because they were chased away or given no cooperation by army personnel or local police, and thereafter slept over the matter for next ten years. The allegations levelled as regards burial of dead body of non local claimed by petitioners as Abdullah Bhat and respondents as Mohi- uddin Afghani alias Muteen Chacha, may also have substance. The least that was expected, nay, required of police station Anantnag, was to take photograph of the dead body before burial and in case such photographs were taken at the time of post-mortem, to get the photographs duly attested by the doctor, conducting post-mortem or preserve a cell/tissue, if possible, for DNA (Deoxyribonucleic acid) profiling/matching. This would have ended the controversy as regards identity of deceased. There apparently was no reason to bury the body in hot haste without resorting to aforesaid procedure or such other procedure as would leave no room for any controversy. The concerned police could have also maintained record about the spot where the deceased was buried so that there was no difficulty as regards identification of place of burial. However, it may not be appropriate to render any final opinion in the matter for the reasons detailed hereinafter.
28. It is important to point out that petitioners do not dispute that an encounter between militants and armed forces took place on 1st March 2001 near T.B. Hospital, Janglat Mandi, Anantnag or that the encounter claimed lives of few army personnel and civilians and also resulted in injury to armed forces personnel and civilians. It has been consistent stand of learned counsel for petitioners during course of arguments that petitioners do not dispute the occurrence but what they dispute is identity of the person killed in the occurrence and dubbed as foreign militant. Their only grievance is that one of the persons killed in the encounter, dubbed as foreign militant, named Ghulam Mohi-uddin Afghani alias Mutteen Chacha, alleged to have attacked the armed forces convoy, and killed and injured army personnel, was not a foreign militant but a civilian named Abdullah Bhat resident of Kalaroos, Kupwara. This apart, the very fact that a senior army officer was killed and Commander, Sector I, Rashtriya Rifles, was amongst injured, may not lend support to the assertion that the encounter was fake or stage managed. In the above background and in view of the stand taken, the occurrence is not a fake encounter in the sense the expression is used in common parlance or in the context of law and order situation. The expression fake encounter is used when the encounter does not at all take place and a person killed by police or security forces is wrongly shown to have been killed in an exchange of fire between militants and security forces that never happened and took place. The petitioners case is not that Shri Abdullah Bhat was involved in the occurrence but wrongly projected as a foreign militant. Though the averments made in the petition in this regard are hazy, yet what one can gather from the averments is that Shri Abdullah Bhat, according to the petitioners, was working as labourer in Anantnag, was a bystander at the time of occurrence and got killed in cross firing between armed forces and militants, and that the police, to earn laurels, labelled him as foreign militant responsible for the attack. The petitioners seemingly are not interested to find out as to who was responsible for the occurrence of 1st March 2001. Their interest is restricted to identification of the person other than two locals of Anantnag town, killed in the encounter, buried in a local graveyard and according to them, wrongly projected as a foreign militant named Mohi-uddin Afghani alias Muteen Chacha. Whether the matter should be reinvestigated or de novo investigation ordered, would depend upon identification of third person (non-local) killed in the encounter. The matter, against the above backdrop and restricted interest of petitioners, therefore, does not, at least at this stage, call for a direction for reinvestigation of case FIR No. 72 of 2001 under Section 302, 307, 427 RPC, 7/25 Arms Act, Police Station Anantnag.
29. This takes us to the third and last ground urged by respondents in opposition to writ petition. The respondents case is that the matter is stale and belated and that Court cannot interfere more than a decade after investigation has been concluded, charge-sheet filed and even trial concluded. Learned counsel for respondents to reinforce their arguments, lay reliance on M/s Trilokchand Motichand & others versus H. B. Munshi and another (AIR 1970 SC 898), Babu Singh & others versus Union of India & others (AIR 1979 SC 1713), and P.S. Sadasivaswamy versus State of Tamil Nadu (AIR 1974 SC 2271). It is settled principle of law that there is no period of limitation for courts to exercise their powers under Article 226. It is equally well settled that there can never be a case where the courts cannot interfere in a matter after the passage of a certain period of length of time. But it has been clarified in the cases relied upon that it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extra ordinary powers under Article 226 in favour of person(s) who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court with a stale claim and try to settle the unsettled matters. The length of delay in such a matter would be important circumstance to be considered by the courts. The Court is not to inquire into belated and stale claims or take note of evidence of neglect of ones own rights for a long time. The party claiming fundamental rights must move the court before other rights come into existence. The interest of the State, as is borne out from the maxim interest reipublicoe ut sit finis litium, is that there should be a limit to litigation. However, in peculiar circumstances of the present case set out hereinafter, we are not required to dilate on this aspect of the case.
30. It is pertinent to point out that Deputy Inspector General of Police, South Kashmir Range (SKR), Anantnag, has on his own without any judicial intervention, taken cognisance of complaint filed by a Non- Governmental Organisation YES Kashmir, and vide communication No.CS/SKR/54/54-39/Ang/2011/412 dated 20th June 2011, sought a report from Senior Superintendent of Police, Anantnag. The Senior Superintendent of Police, in compliance of aforesaid direction, submitted his report vide No.Rd/CR-IV/11/18672 dated 16.07.2011. The Deputy Inspector General of Police, SKR, Anantnag, on perusal of the report received from Senior Superintendent of Police, Anantnag, vide order No.Pros/Clt/11/9944 dated 9th August 2011, directed Senior Superintendent of Police, Anantnag, as under:
Please entrust the matter to a Gazatted Officer who will examine the complainant party and also verify the matter further. Report accordingly be sent to this office without further delay.
31. There is nothing on file to show that the order of Deputy Inspector General of Police, SKR, Anantnag, has been carried out and matter entrusted to a Gazetted Officer. In the circumstances, Deputy Inspector General of Police, SKR, Anantnag, having taken cognisance of the matter and passed necessary instructions on 9th August 2011 for inquiry by a Gazetted Officer, respondents cannot be heard saying that the matter does not warrant any consideration because of delay and laches. Had Deputy Inspector General of Police, SKR, Anantnag, not taken cognisance of the matter or passed order for inquiry, respondents possibly could have been heard saying that long and inordinate delay must dissuade the Court from exercising powers under Article 226, Constitution of India.
32. In the said background, Deputy Inspector General of Police, SKR, Anantnag, having already taken decision in the matter and directed inquiry to be conducted by a Gazetted Officer, nominated by Senior Superintendent of Police, Anantnag, the Senior Superintendent of Police, Anantnag, is required to be directed to carry out the instructions given by Deputy Inspector General of Police, SKR, Anantnag, and submit his report in terms of order dated 9th August 2011, so that further action is taken in the matter, in light of the inquiry report contemplated under aforesaid order. The question of compensation, if any, to the petitioners, would obviously hinge on outcome of such inquiry.
33. For the reasons discussed, the writ petition is disposed of with a direction to Senior Superintendent of Police, Anantnag to entrust the matter as directed by Deputy Inspector General of Police, South Kashmir Range, Anantnag, vide his order No. Pros/Clt/11/9944 dated 9th August 2011, to a Gazetted Officer for necessary inquiry in terms of said order with reasonable dispatch unmindful and uninfluenced by the observations made herein, and submit his report to Deputy Inspector General of Police, South Kashmir Range, Anantnag, for further necessary action, having regard to the outcome of such inquiry.
34. Disposed of along with CMP(s).
(Hasnain Massodi) Judge Srinagar 19/02/2013