Jammu & Kashmir High Court
Farooq Khan S/O Sh. Mohd. Sarwar Khan vs State Of Jammu And Kashmir And Ors. on 18 February, 2005
Equivalent citations: 2005CRILJ4417, 2006(1)JKJ165
Author: Permod Kohli
Bench: Permod Kohli
ORDER Permod Kohli, J.
1. Legality and propriety of Inquiry Report of One Man Commission dated 15-12-2002, Notification SRO 106 dated 15-3-2003 appointing One Man Corn-mission of Inquiry and all consequential actions initiated by the State on the basis of the Report of Commission of Inquiry have been called in question by the petitioner, who is an IPS Officer of the State.
2. Briefly stated the facts leading to the filing of this petition as are available in the pleadings of the parties are--
Petitioner was posted as Superintendent of Police, Anantnag from August, 1998 to 4th April, 2000. On 25th March, 2000 Adjutant 7th Bn, Rashtriya Rifles (Pb) submitted a written report to Police Station, Achhabal for registering an FIR disclosing that an Army Unit carried out specific cordon and search operation in Forest of Panchalthari from 5.15 hours to 1500 hours on 25th March, 2000. An encounter took place between terrorists and troops of the Unit. In the operation five terrorists were killed. The identity of the terrorists was not known. The site was visited by a police party from Police Station, Acchhabal. The dead bodies were handed over to the police party at 12.30 hours on 25th March 2000.
3. Based upon the above, FIR No. 15/ 2000 came to be registered by the Police Station, Achhabal. The occurrence report was mentioned as 'Pathrlbal Encounter' in which five alleged terrorists were killed In the operation conducted by the Army. On 26th March, 2000 one Ghulam Qadir Sheikh, Chowkidar of village Brarl Angan, lodged a written report in Police Station, Achhabal that on the intervening night of 23rd /24th March, 2000 some unidentified masked gunmen had kidnapped two persons from the village, namely, Juma Khan S/o Faquir Ullah Khan and Juma Khan S/o Amir Ullah Khan, both residents of Village Brari Angan. On this report a case FIR No. 16/ 2000 was registered at Police Station, Achhabal and investigation taken up. On 27th March, 2000 another written application was filed by one Mohd. Yousuf Dalai in Police Station, Anantnag reporting missing of his nephew Zaboor Ahmed Dalai and a missing report was entered in Daily Diary of Police Station, Anantnag under report No. 19 dated 27th March, 2000. On the same day another application came to be filed by one Ghulam Hassan Malik at Police Station, Anantnag regarding missing of two persons, namely, Mohd Yousuf Malik and Bashir Ahmed Bhat both residents of Hallen, district Anantnag. This report was also entered vide Daily Diary Report No. 26 dated 27th March, 2000.
4. A section of the people of District Anantnag protested against the killings in encounter at Pathribal alleging the victims were innocent civilians. A Criminal Complaint also came to be filed by the people along with members of the local Bar in the Court of Chief Judicial Magistrate, Anantnag who ordered an inquiry by the Dy. S. P. PHQ, Anantnag vide order dated 29-3-2000. The said officer, namely, Sheikh Abdul Rehman, Dy. S. P., PHQ Anantnag filed his report before the Chief Judicial Magistrate, who directed registration of FIR and consequently two FIRs No. 98/2000 and 99/2000 came to be registered at Police Station, Anantnag under Section 302 RFC. Police also added section 302 RFC in the already registered FIR No. 16/2000 of Police Station, Achhabal. The Investigating Officer approached the District Magistrate seeking direction for exhumation of the dead bodies of persons killed by Army at Pathribal on 25th March, 2000. Before the order of District Magistrate for exhumation of the dead bodies of persons could be executed a procession was taken out by the locals from Anantnag down and adjoining areas demanding immediate exhumation of the dead bodies. This procession was allegedly fired upon by the personnel of CRPF and Special Operation Group of J&K Police at Village Barakpura Bulbul Nowgan on 3rd April, 2000 resulting in killing of eight civilians and injuries to many others.
5. Following the afore-said incident, the petitioner alongwith District Magistrate, Anantnag and DIG of the area namely, Raja Eizaz All came to be transferred vide Govt. Order No. Home 159 (P) of 2000 dated 4-4-2000. Petitioner was replaced by one Muneer Khan, Superintendent of Police and relieved on the same evening. By a subsequent Government order No. Home 163(P) of 2600 dated 8-4-2000 the petitioner was placed under suspension along, with one Gazanffar Ahmed. Sub-Inspector, the then SHO Police Station, Achhabal, pending inquiry into the killing of eight persons on 3rd April, 2004. The State Government also constituted a One Man Commission of Inquiry vide Notification SRO No. 99 dated 17-4-2000 headed by Mr. Justice S. R. Pandian, retired Judge of the Supreme Court of India relating to the incident of killing of eight persons on 3rd April, 2000. The Commission of Inquiry submitted its report dated 27-10-2000 to the Government. As per this report petitioner was not found guilty of any act of omission or commission.
6. The State Government accepted the report of the Commission of Inquiry and revoked the suspension of the petitioner vide Government Order No. 485-A (P) of 2001 dated 2-12-2001.
7. Pursuant to his reinstatement vide the aforesaid Government order, the; petitioner rejoined his duty.
8. In view of the orders of the District Magistrate, Anantnag the dead bodies of five civilians killed at Pathribal were exhumed on 6/7th April, 2000, under the supervision of the then District Administration. The entire process of exhumation was video-graphed and telecast by the local News Channels also. On 9th April, 2000 a team of Doctors from Government Medical College, Srinagar collected Blood Samples of the relatives of five persons who were allegedly killed at Pathribal, under the supervision of the Senior Officials of the District including District Magistrate, Superintendent of Police and Inquiry Officer, Sheikh Abdul Rehman. Even this process was also video-graphed and telecast. The samples collected from the dead bodies as also from the relatives of the deceased were sent to two Laboratories along with Finger Prints at Kolkatta and Hyderabad for DNA and Finger Printing Tests. As reported by the Laboratories the samples were found to be fake and fudged.
9. The State Government on receipt of the report from the Laboratories constituted another One Man Commission of Inquiry, headed by Mr. Justice G. A. Kucchhai, a-Retired Judge of the J&K High Court to enquire into fudging of DNA Samples. A Notification constituting the Commission and the terms of reference was issued being SRO 106 dated 15th March, 2002 under the Jammu & Kashmir Commission of Inquiry Act 1962. Petitioner claims to have received a notice dated 25-7-2000 requiring him to file his written statement. A number of other persons were also issued similar notices. Petitioner filed his written statement on 21-8-2002. Petitioner was also summoned to appear as a witness before the Commission and his statement was recorded on 27-9-2000. On conclusion of the inquiry. One Man Commission, headed by Justice G. A. Kuchhai submitted its report dated 15th Dec. 2002 to the Government. On consideration of the report the State Cabinet appointed a Sub committee on 16-1-2003 vide Govt. order No. 95-GAD of 2003 dated 17-1 -2003 pursuant to Cabinet Decision No. 12/1 dated 16-1-2003. The Cabinet Sub-Committee comprising of Mr. Mangat Ram Sharma, Deputy Chief Minister, Mr. MuzaffarBeg. Minister of Finance, Planning, Law and Parlimentary Affairs and Mr. Taj Mohl-ud-Din, Minister for Food and Supplied of the J&K Government. The Cabinet Sub-committee suggested to the State Cabinet the suspension of the petitioner for purposes of prosecution by the Vigilance Organization. This decision was based upon adverse comments and findings upon the conduct of the petitioner as a police officer. In the meanwhile the State Government vide SRO No. 301 dated 13-8-2002 transferred the investigation of FIR No. 15/2000 and 16/2000 of Police Station, Achhabal and FIR Nos. 98/2000 and 99/2000 of Police Station, Anantnag to CB1. As far as FIR No. 98/2000 and 99/2000 are concerned these relate to fudging of Blood samples of Zahoor Ahmed, Bashir Ahmed and Mohd. Yousuf Malik as also of Juma Khan S/o Faqir Ullah and Juma Khan S/o Amir Ullah and accordingly two more sections i.e. 201/120B RPC were also added in FIR No. 16/2000 vide SRO No. 514 dated 19-12-2002.
10. It is admitted case of the parties that these FIRs are still under investigation by the CBI.
11. On the basis of the report of the Cabinet Sub-Committee, referred to above, the State Government issued a hand-out dated 23-7-2003 whereby the petitioner was placed under suspension relating to the incident of fudging of DNA samples in Pathribal incident. In addition to this Bashir Ahmed, ASI was removed from service and Abdul Rehman, the then Dy. S. P. who was appointed as an Inquiry Officer by the Chief Judicial Magistrate, Anantnag censured. The hand-out also commented upon the conduct of Dr. Balbir Kour and team of Doctors of the lack of proficiency and diligence as found by the Commission of Enquiry. This hand note also contained a reference to the commitments of the State Government for action against the guilty as per their commitment to the people.
12. Petitioner is aggrieved of the observations and findings of the Commission as contained in its report dated 15-12-2002 and has assailed the same primarily on the following grounds :--
(i) The findings are perverse without any evidence material on record.
(ii) The findings are beyond the reference inasmuch as Commission was constituted to enquire into fudging of DNA samples, whereas the Commission has returned the findings regarding firing incident at Pathribal which was subject matter of the earlier Inquiry Commission and report received and accepted by the State Government.
(iii) The Commission has commented upon the conduct of the petitioner as a police officer and his reputation without compliance of the provision of Section 10 of the J&K Commission of Inquiry Act 1962;
(iv) Justice G; A. Kuchhai was not eligible to be appointed as Chairman, Corn-mission of Inquiry.
13. Separate objections have been filed by respondents No. 1, 3 & 4. As far as the reply filed by respondents No. 1 & 3 is concerned what has been stated is that the Commission has submitted its report to the Government and the matter has been referred to CBI for further investigation. It is however admitted that the Commission has commented upon the role of petitioner and in order to ensure that the truth becomes clear the prime investigating agency of the country is conducting the investigation in the matter. As far as respondent No. 4 is concerned, the Home Department has filed its detailed objections which were treated as counter. While giving the details of the circumstances relating to the constitution of the Commission, it is stated that the Commission during the conduct of Inquiry provided ample opportunity of being heard by way of filing of written statement and recording of statement as a witness to the petitioner. It is stated that principles of natural justice have been complied with in its true spirit by the Commission. It is further stated that based upon the report of the commission a Cabinet Sub-Committee was constituted which suggested the suspension of the petitioner and handing over of the investigation of the case regarding fudging of the DNA samples to the Vigilance. However, subsequently, pursuant to Cabinet Decision No. 173/12 dated 2-9-2003 and Cabinet Decision No. 749/9 dated 23-7-2003, the matter was referred to Central Bureau of Investigation and accordingly a corrigendum to the Govt. order No. Home 399 (P) of 2003 dated 29-7-2003 was issued on 18-9-2003. It is specifically admitted that the Commission has commented upon the role of the petitioner in the matter. Regarding investigation in FIR Nos. 15/2000 and 16/2000 of Police Station, Achhabal; FIR Nos. 98/2000 and 99/2000 of Police Station, Anantnag it is stated that the same are already under investigation by the CBI. It is also admitted that one Man Commission of Inquiry indicted the petitioner along with some other; Government Officials, which warranted disciplinary action against them under rules.
14. As far as the question of suspension of the petitioner is concerned, the same stand challenged before the Central Administrative Tribunal (Chandigarh bench) in OA No. 59/JK/2Q04. These respondents however, stated that the findings of the Commission do not in any manner effect the reputation and career of the petitioner in any manner and the findings of the Commission are only for the purpose of impeaching his credibility.
15. Mr. Salathia, learned Counsel for the State has vehemently argued that there are no findings against the petitioner in the report of the Commission and the observations of the Commission in its report are only to impeach his credibility as a witness.
16. With a view to examine the validity of the challenge to the report of the Commission, it is relevant to examine the action of the Commission and its findings vis-a-viz the petitioner.
17. The terms of the reference to the One Man Commission of Inquiry, headed by Justice G. A. Kuchhai were
(i) enquire whether the samples of those killed in village Pathribal, District Anantnag in March, 2000 which were sent for DNA test to Kolkata were fake/spurious; and
(ii) enquire into the circumstances under which the said samples came to be collected; and
(iii) fix responsibility of persons directly or indirectly involved for commission of such acts.
Petitioner was issued notice dated 25-7-2002 asking to file written statement on the following points :--
(1) Date of Your posting as Sr. Superintendent of Police, Anantnag with date of transfer from that District:
(2) Time, date and mode of receipt of information and action taken with regard to disappearance of S/Shri Zahopr Ahmed Dalai S/o Ab. Gaffar Dalai R/o Mominabad Anantnag, Bashir Ahmed Bhat S/o Abdul Aziz Bhat R/o Hallen Renchowgund Anantnag; Juma Khan S/o Faquirullah Khan R/o Brari Angan, Anantnag, Juma Khan S/o Amir Khan R/o Brari Angan Anantnag and Mohd. Yousuf Malik S/o Kabir Malik R/o Hallen Renchowgund Anantnag from their respective localities.
(3) Time, date and mode of information received regarding disappearance of any other person apart from the persons mentioned at item (2) above and action taken with regard to their disappearance;
(4) Which of the forces, SOG, Army or para-Military formation, if any, who claimed ord. Took part to trace or gun-down the alleged killers of Chatti Singhpora incident.
(5) Name of the Battalion, Coy and their respective areas of operation, names and belt numbers of Bn and Coy Commanders and names and belt numbers of troops who took part into the gunning down of alleged killers of Chatti Singhpora incident;
(6) Whether you, as SSP Anantnag, gave any press conference at Anantnag. If so, you shall give your assertions regarding killing of alleged militants responsible for Chatti Singhpora episode with special reference to the source of information Cassette, if any, in this regard be furnished to the Commission.
(7) Whether you participated at the time of exhumation of dead bodies of alleged militants, disputed by the locals or kins of the deceased;
(8) Your participation at the time of collection of samples of deceased named and their kins with date, together with other authorities having associated;
(9) Who passed the orders regarding collection of samples in question of the deceased named and their kins. Role, if any, played by you;
(10) The samples so collected of the ex humed bodies and their kins, were possessed by whom, till their dispatch to respective laboratories;
(11) The authority who dispatched the samples allegedly to the respective laboratories and after how many days of the collection of same;
(12) At which place and on which date the samples were sealed and whose seal was made use of. With whom the seal was kept till the samples were dispatched and report, if any, from the laboratories received;
(13) In whose presence the samples were sealed;
(14) Whether the samples were sent by post or by hand; If by hand, names of the persons with designation responsible to carry such samples with reference of the authority order ;
(15) Whether any record was maintained regarding :--
(a) exhumation of the dead persons;
(b) collection of such samples from deceased and their kins;
(c) sealing of the samples and dispatch of the same to laboratories. If so, where the record lies and
(d) order, if any, regarding possession of such samples to any authority from the date of its collection till they were actually sent to laboratories concerned;
(16) Whether the Government had taken any action against any Government Official including you due to public out-cry/resentment regarding the killing of five persons named and firing at Brakapora in the chain of episode in question.
(17) If you had issued any communication as SSP, Anantnag to Principal, Govt. Medical College, Srinagar and Dr. Balbir Kour, Professor and head Department of Forensic Medicine, CMC, Srinagar. If so details of the same;
(18) If you had issued or received any communication regarding the killing of five persons named from any person or officer/ official of Central or State Government or any other agency including the concerned unit which claimed to have gunned down the alleged killers of Chatti Singhpora incident. If so, details of the same;
(19) Your impression about the whole episode of about the killing of alleged militants, claimed by locals to be innocent civilians, whose samples were collected for DNA tests; and (20) Any other information you could give to the Commission to arrive at its logical end."
Petitioner submitted his detailed reply to 20 points in the following sequence :---
1. The undersigned was posted as Superintendent of Police, Anantnag on 12-8-1998 and was transferred and relieved on 4-4-2000.
2. (i) As per official record information regarding missing of one Zahoor Ahmed Dalai S/o Abdul Gaffar Dalai R/o Mominabad Ashajipura was received by the Police Station, Anantnag on 27-3-2000 in the shape of a written application submitted by one Mohd. Yousuf Dalai S/o Ghulam Rasool Dalai who stated in his written application that said Zahoor Ahmed Dalai had gone for offering prayers on 24th of March, 2000 at about 7 PM and has not returned. The applicant had also stated that he does not suspect any foul play in the matter. On this report as per official record of Police Station Anantnag a missing report was entered vide DD report No. 19 dated 27-3-2000 and the concerned Police Station started the search of the missing person.
(ii) As per official records information regarding Bashir Ahmed Bhat S/o Abdul Aziz Bhat R/o Hallen Renchowgund Anantnag and Mohd. Yousuf Malik S/o Kabir Malik R/o Hallen Renchowgund Anantnag, Tehsil Doru was received in writing from one Ghulam Hussari Malik S/o Ghulam Ahmed Malik R/o Renchowgund on 27-3-2000 in Police Station, Anantnag at 1810 Hrs. Ghulam Hussan Malik informed in writing that Mohd. Yousuf Malik S/o Kabir Malik and Bashir Ahmed Bhat S/o Abdul Aziz Bhat Rs/o Renchugund, Tehsil Doru are missing since 24-3-2000 some time after 5 PM. He also stated that he does not suspect any body in this regard. On this written report a missing report was entered in the Dally Diary of Police Station, Anantnag vide DD report No. 26 dated 27-3-2000 and Police Station initiated the process for searching the missing persons as per Police Station record.
(iii) As per records of Police Station Achabal one Ghulam Qadir Sheikh Chowkidar village Barari Angan reported in writing in Police Station Achabal on 26-3-2000 that during the intervening night of 23/24-3-2000 unidentified masked gunmen have kidnapped Juma Khan S/o Amir Khan and Juma Khan S/o Faquir Khan with an intention to kill them. On this report case FIR No. 16/2000 under Section 364. RPC, 7/25 Arms Act was registered at Police Station, Achabal and investigation was taken up.
Police Station records of the respective Police Stations can be perused in this regard.
3. From August, 1998 to 4th of April, 2000 a number of missing reports were lodged by different persons in different Police Stations of the district. The undersigned is not in a position to give the asked for details as he is not in a position to peruse the complete relevant record of District Anantnag. However, the information can be collected from the present Sr. Superintendent of Police, of the district.
4. As per official records of Police Station Achabal a written FIR was lodged by Major Adjutant 7th Battalion Rashtrya Rifles which stated that on 25-3-2000 an army unit carried out cordon search operation in forest of Pachalthan and an encounter took place between terrorists and the troops of the unit and in the operation five terrorists were killed whose identities were not known. On this a case FIR No. 15/2000 was registered in Police Station Achabal u/S. 307 RPC, 7/25 Arms Act. No written claims about gunning down of the alleged Killers of Chatti Singhpura incident were made by any person.
5. The FIR as mentioned about gave only the name of the Battalion i.e. 7th Battalion Rashtrya Rifles and result of the information asked for is not in the knowledge of the undersigned.
6. As the then Sr. Superintendent of Police, Anantnag the undersigned did not give any press conference at Anantnag.
7. The undersigned did not participate at the time of the exhumation of dead bodies as he was already transferred and relieved from the district.
8. The undersigned did not participate at the time of collection of samples as he was already transferred and relieved from the District.
9. Not known to the undersigned.
10. The undersigned has no knowledge as this all happened much after he had left the District.
11. The undersigned has no knowledge as this all happened much after he had left the district.
12. The undersigned has no knowledge as this all happened much after he had left the district,
13. The undersigned has no knowledge as this all happened much after he had left the district.
14. The undersigned has no knowledge as this all happened much after he had left the district.
15. The undersigned has no knowledge as this all happened much after he had left the district.
16. The undersigned was placed under suspension on 8-4-2000 as a Commission of Enquiry was instituted namely "Hon'ble Justice Pandian Commission of Inquiry" into the incident and the circumstances leading to firing a Barakpura. The then Dy. S. P. Sh. Tajinder Singh and the then SHO P/S Achabal SI Gazanaffer Ahmed were also placed under suspension on the same grounds. The Commission submitted its finding in October, 2000 and nothing incriminating was found against the undersigned as well as .the two above mentioned officers.
17. The undersigned had not issued any such communication to the best of his knowledge.
18. The facts have been narrated in para 4 above.
19. The undersigned cannot give arty impression at this stage as the issue is under investigation.
20. To the best of his knowledge the undersigned has shared all the information known to him".
Statement of the petitioner was recorded On 27-9-2002 on oath as a witness. Observatiofis and findings of the Commission in its dated 15-12-2002 as extracted are as under --
(Page 26 of Report) "(A) The fact cannot be denied that as per investigation of the FIRs registered (diary perused), the encounter at Panchalthan Pathribal, prima facie was a fake one, where civilians have been killed under the garb of foreign militants, jointly by army (7RR) and STF personnel, named, of Police Post Sher Bagh, Anantnag under the command of ASI Bashir Ahmed. The entries in the Roznamcha of Police Post Sher Bagh, in the hand of Mohammad Yaqoob then Mohrir at the instance of ASI Bashir on 24-3-2000 i.e. departure report on secret duty under the orders of the then SSP Anantnag, towards Police control Room and then to RR Camp at Khundroo (Marked as M-1) and return entry to PP Sher Bagh on 25-3-2000 (Marked as M-2) indicates the operation rather participation of Special Operation Group wing of State Police and duly authorized by the then SSP Anantnag Shri Farooq Khan. The entry is confirmed in his statement by ASI Bashir Ahmed together with Mohammad Yaqoob, SGCT, Mohrir, then having recorded the same and proved before the commission. Shri Farooq Khan, then SSP Anantnag, in his statement before the Commission has directly denied having given direction to the ASI' Bashir Ahmed to participate or to proceed on secret duty, but still in a suggestive manner admitted that such entries may have been made in the Roznamcha of the Police Post Sher Bagh, as he had given standing instructions to all the police stations to cooperate with the army locally when required. Here the entry in Roznamcha of PP Sher Bagh on 24-3-2000, regarding departure on secret duty are by the SSP Shri Farooq Khan, which has been maintained in normal course and routine manner."
(Page 27 of Report) (B) Now, there is another important aspect reflecting the conduct of Shri Farooq Khan, SSP Anantnag then regarding the encounter, he is the first senior officer of the J&K Police reaching on spot of the encounter (Panchalthan) around 9.30 AM on 25-3-2000, having received information at 6.00 AM on that day. On the spot of encounter a videography by TV and media persons regarding the incident having taken place, over and above the army authorities Shri Farooq Khan, at par with the army rather parallel to them has participated in such videography declaring rather announcing killing of five foreign militants, twisting such announcement as per the information of the army, forgetting his authorization to the personnel of SOG. The Videography got telecasted same evening on Srinagar Doordarshan locally. The army, as per their action, had to take credit, why Shri Farooq Khan, SSP allegedly short of earlier knowledge as per his stand posed in the videography in full view of a big crows comprising of army officers, State authorities and police in addition to the local public, announced the killing of foreign militants.
(Page 27 of Report) (C) The Third point in the chain of events is the order passed by Doctor Pawan Kotwal, LAS District Magistrate, Anantnag on 1-4-2000, on an application by Sheikh Abdul Rehman, Dy. SP Anantnag (to be referred as Enquiry Officer) for exhumation of dead bodies in. question and DNA test for establishing identity of the deceased. To refer the conduct of SSP in this regard, attempting to cloud the incident, one more witness before the Commission examined on oath Shri Muneer-ud-Din Shawal, Advocate, President Bar Association, Anantnag, then who has piloted the cause of the aggrieved regarding exhumation of dead, exposed the picture by narrating that Shri Farooq Khan, SSP in a meeting on having been called by the District Magistrate, Anantnag at his residence having resisted, the order of exhumation by stating that the dead bodies were charred beyond recognition but ultimately Yielding exhumation of the dead bodies subject to the condition of DNA test which he would take care himself. The order got collected on 3-1-2000 by Shri Muneer-u-Din Shawl from District Magistrate's office.
(Page 28 of Report) (D) To appreciate the point raised by Shri Shawl, both Shri Pawan Kotwal, DM and Shri Faqrooq Khan, SSP examined before the Commission having admitted that discussions on DNA test having taken place between them at some stage which supports the assertion of Shri Shawl regarding resistance of the order for the exhumation bringing. Shri Khan, SSP to picture."
(Page 30 of Report) (E) As has been discussed, Shri Farooq Khan, SSP then having actively remained in touch with the incident, even suggesting DNA test to DM Anantnag, having discussed the issue, stating that he will take care of DNA test himself, in continuation of his past performance in the matter, the proxy participation by the police through the technicians even from Medical Superintendent's Office is quite evident and cannot be ignored. In the circumstances, if anybody could be held interested prima facie in destruction of evidence from civilian side it can be suggested of Shri Farooq Khan, the then SSP Anantnag though not posted at that time there,"who had the whole knowledge of the encounter as per entry in the Roznamcha."
(Page 32 of Report) (F) xx xx The alleged killers of innocent civilians, as per investigation, are alleged primarily the army supported by Special Operation Group, how far they have stretched their folded wings is not in picture or otherwise visible."
(Page 34 of Report) (G) It is proved beyond doubt that the police record itself that then SSP Anantnag (Shri Farooq Khan) had given directions to ASI Bashir Ahmed to go on secret duty i.e. to join the encounter, which directly connects the District Police with the event. X x x x x x x x. Thus, District Police Chief, then (Shri Farooq Khan) had every reason to be anxious that DNA test should result in negative than positive to remain the fact of alleged killing of foreign militants intact."
(Page 34 of Report) (H) The circumstances which led to this presumption or attempts by Shri Faqrooq Khan, then SSP to thwart an order by Dr. Pawan Kotwal, District Magistrate for exhumation of dead bodies, drawing his attention that matter being subjudice due to order of enquiry by CJM, Anantnag, further suggesting DM that exhumation should be subject to DNA test which he will take care, coupled with participation of Shri Farooq Khan (then SSP Anantnag) in the Video-graphy by media on spot. As per official cassette called and played before the Commission, the killing of five foreign militants is made public by him side by side the army. All these factors leave little doubt that Shri Farooq Khan, then SSP, might have managed behind the scene that blood samples so collected turned take by indirect methods."
(Page 38 of report) (I) The Commission is justified to suggest that the alleged forces responsible for killing of five innocent civilians, appear to have taken full advantage to save their skin, of liberty offered by the team of Doctors to negative result of blood samples together with apparent co-operation of Laboratories indicated as per their unexpected show performance of dispatching the result of test conducted not otherwise time consuming but for unconvincing reasons projected."
18. The findings at S. No. C, D, E, G. H in suggesting the role of the petitioner in fudging the DNA samples appears to be without any legal evidence. The Commission in its report has itself admitted lack of evidence. Relevant observations of the Commission are noticed at internal page 32 of the report --
"The Commission despite having notified to general public for any kind of evidence in support of the reference but there was no response from any quarter, with the result the Commission has to rely on evidence recorded and the records. The Commission is thus relying on circumstantial reliable evidence to draw the presumption in respect of the question under reference.
The Commission has further in detail discussed the background of the whole episode.
In brief, now the duty cast on the Commission is to expose those factors which have led to the unfortunate negative result reported by the Laboratories indicated."
...
The Commission as. per background of the alleged killing of five innocent civilians and on the basis of other evidence discussed is of the firm opinion that only those forces will attempt destruction of evidence regarding identification of dead bodies killed in alleged "fake encounter' who took part in the actual operation on the spot of encounter."
19. Even during the course of arguments, learned Counsel for the respondents has not been able to refer to any evidence which can farm basis for these findings. Therefore, it will not be incorrect to say that the findings of the Commission are based upon presumptions, assumptions and conjectures, without there being any evidence or legal material on record, tendered or produced before the Commission. Not only that Questionnaire Nos. 7, 8, 9, 10, 11, 12, 13, 14, 15 relate to taking out of the samples, exhumation of the dead bodies etc. Petitioner in reply to these questions denied his knowledge or participation in the exhumation of the dead bodies, collection of samples, its forwarding to the Laboratories etc.
20. Admittedly, the petitioner had been transferred on 4-4- 2000 from Anantnag and relieved on the same evening. The exhumation of the dead bodies and collection of samples was carried out between 6th April to 9th April, 2000, when the petitioner was not there and was not associated with the same. The Commission has not referred to any material or evidence on record to show that the petitioner could have associated with this entire process of exhumation of the dead bodies, collection of samples and forwarding of the same to the concerned Laboratories. This is particularly so in view of the fact that the entire process of exhumation and collection of samples was video-graphed and held in presence of the District Administration and the In charge Police Officers of the time. It is relevant to notice that the entire District Administration including the petitioner had been changed and new officers took over. Besides the local public including the members of the Bar were so active in the entire matter that there could not have been any possibility of the petitioner associating himself. The Blood Samples were taken out by the team of Doctors/Technicians of Government Medical College, Srinagar in presence of District Administration. Therefore, to attribute involvement of the petitioner in this process appears to be remote rather impossible.
21. Much emphasis has been laid down on the findings of the Commission on points A, B, F, G and I. It has been contended on behalf of the petitioner that these findings of the Commission are totally irrelevant and beyond the scope of reference, I have already noticed the terms of reference of the Commission as notified vide Notification SRO No. 99 dated 17-4-2000. The Commission was only required to enquire into the collection of samples of the dead persons killed at Pathribal and the circumstances leading to the fudging of the samples sent for DNA tests. The Commission was not required to return any findings regarding the incident at Pathribal in which five persons were killed as also the incident of 3/4th April, 2000 for which a separate Commission of Justice S.R. Pandian had been constituted and after the detailed inquiry report submitted to the Government which also stood accepted. It is also relevant to notice that the petitioner was exonerated by the Commission of Justice S. R. Pandian and consequently re-instated to service on acceptance of the said report. Therefore, these findings of the Commission of Justice G. A. Kuchhai are totally beyond the scope of reference for which the Commission was constituted and required to conduct an inquiry.
22. As far as the compliance of the provisions of Section 10 of the J & K Commission of Inquiry Act 1962 is concerned, it is relevant to notice certain provisions of the Act.
"3. Appointment of Commission.
(1) The Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by the Jammu and Kashmir State Legislative Assembly or the Jammu and Kashmir Legislative Council, by notification in the Government gazette, appoint a Commission of Inquiry for the purpose of making an Inquiry into any definite matter of public importance which shall be specified in the. notification and performing such functions being functions necessary or incidental to the inquiry and within such time as may be so specified in the notification and the Commission so appointed shall make the inquiry and perform the functions accordingly.
(2) The Commission may consist of one or more members appointed by the Government, and where the Commission consists of more than one member, one of them may be appointed by the Government as the Chairman thereof;
(3) The Government may, at any stage of the inquiry by the Commission --
(a) fill any vacancy which may have arisen in the office of a member of the Commission (Whether constituting of one or more than one member) or
(b) increase the number of members of the Commission.
(4) The Commission shall complete its inquiry and make its report to the Government within such period as may be specified by the Government by notification in the Government gazette, or within such further period as the Government may by like notification specify.
4. Power of Commission:--
(1) The Commission shall have the powers of a Civil Court while trying a suit under the Code of Civil Procedure Svt. 1977 in respect of the following matters, namely :--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits
(d) requisitioning any public record or copy thereof from any Court or office;
(e) issuing commission for the examination of witnesses or documents;
(f) any other matter which may be prescribed.
(2) For the removal of doubts, it is hereby declared that notwithstanding any judgment, order or direction of any Court, Tribunal or Commission to the contrary, nothing in this Act shall empower or be deemed ever to have empowered the Commission to--.
(a) compel or permit any person to give evidence derived from unpublished official records relating to any affairs of the State except with the permission of the officer at the Head of the Department;
(b) Compel any public officer to disclose any information or communication made to him in official confidence, if he considers that the public interests are likely to suffer by the disclosure; and
(c) Compel or permit the discovery and production of any document relating to the affairs of the State or any communication written in official confidence, if the officer at the head of the department concerned considers that public interests are likely to suffer by such discovery, production or disclosure of the document.
5. Additional Powers of Commission:
(1) Where the Government is of opinion that having regard to the nature of the inquiry to be made and other circumstances of the case, all or any of the provisions of subsection (2) or Sub-section (3) or Sub-section (4) or Sub-section (5) or Sub-section (6) should be made applicable to a Commission, the Government may, by notification in the Government Gazette, direct that all or such of the said provisions as may be specified in the notification shall apply to that Commission and on the issue of such a notification, the said provisions shall apply accordingly.
(2) The Commission shall have power to require any person subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters, as in the opinion of the Commission may be useful for, or relevant to, the subject matter of the inquiry and any person so required be bound to furnish such information;
(3) The Commission or any officer not below the rank of a Gazetted Officer, specially authorized in this behalf by the Commission may enter any building or place where the commission has reason to believe that any books of account or other documents relating to the subject matter of the inquiry may be found, and may seize any such books of account or documents or take extracts or copies there from, subject to the provisions of Section 102 and Section 103 of the Code of Criminal Procedure Svt, 1989 insofar as they may be applicable.
(4) The Commission shall be deemed to be a Civil Court and when any offence as is described in Section 175, Section 178, Section 179, Section 180, or Section 228 of the Jammu and Kashmir Ranbir Penal Code, Svt. 1989, is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure Svt. 1989, forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under Section 482 of the Code of Criminal Procedure, Svt. 1989;
(5) If any person does not act or publishes any writing which is calculated to bring the Commission or any member thereof into disrepute or to lower its or his authority or to interfere with any lawful process of the commission, he shall be deemed to be guilty of an offence and the Commission may after recording the facts constituting the offence forward the case to the Magistrate having jurisdiction to try the same for taking cognizance thereof; and the Magistrate, if he finds him guilty, may sentence him to simple imprisonment which may extend to six months, or to fine which may extend to one thousand rupees, or both.
(6) Any proceedings before the Commission shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Jammu and Kashmir State Rantair Penal Code, Svt 1989."
10. Opportunity to the persons to explain their conduct and representation of Government, by a legal practitioner.
(1) If at any stage of the inquiry the Commission considers it necessary to inquire into the conduct of any person or is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, the Commission shall give to that person a reasonable opportunity of being heard in the inquiry and producing evidence in his defence.
Provided that nothing in this Sub-section shall apply when the credit of a witness is being impeached.
(2) The Government, every person referred to in Sub-section (1) and with the permission of the Commission, any other person whose evidence is recorded by the commission.
(a) may cross-examine any person appearing before the Commission other than a person produced by it or him as witness,
(b) may address the commission.
(3) The Government, every person referred to in Sub-section (I) and with the permission of the Commission, any other person whose evidence is recorded by the Commission, may be represented before the Commission by a legal practitioner, or with the permission of the Commission, by any other person."
From the Scheme of the Act, it is amply clear that the Commission has power to enquire into the matter referred to it and for the purposes of enquiry, it has the power to summon any person and to enforce the attendance of any such person. Section 10 however, provide the safeguards for the persons whose conduct, character and reputation is likely to be prejudicially affected by the Inquiry. If the Commission finds any evidence/material against a person whose conduct and reputation is likely to be prejudicially affected, it is obligatory upon the Commission not only to provide opportunity of being heard to such person, but also to provide opportunity to lead evidence and to cross-examine the witnesses. Admittedly, the petitioner was served with a questionnaire, soliciting his reply which was filed. I have already noticed that the relevant questions from Q. Nos. 7 to 15 & 17 which relate to the issue under reference were replied by the petitioner denying his association which denial is submitted with the material placed on record. In view of the transfer of the petitioner from Anantnag on 4-4-2000 and entire process of exhumation of dead bodies, collection of samples from the dead bodies and the living relatives and their transmission to the concerned Laboratories having been carried out in absence of the petitioner, there was no occasion for him to have associated with the exhumation of dead bodies and blood samples. The Commission in its wisdom summoned the petitioner as a witness. If after recording the statement of the petitioner and examining the reply to the questionnaire, the Commission was of the opinion that the petitioner's role was suspicious and the Commission was required to comment upon his conduct as a Police Officer or his reputation as such, Section 10 mandates the Commission to allow him to lead evidence which also include his right to cross-examine the witnesses. As a matter of fact the evidence should have been recorded by the Commission in his presence and he provided an opportunity not only to lead evidence and cross-examine the witnesses, but also to represent himself at the time of final hearing. This mandate of law has been observed more in breach than in compliance.
23. Mr. Salathia, learned Counsel appearing for the respondents has strenuously argued that the Commission has only made observations regarding the role of the petitioner and there are no adverse findings against him. I fail to appreciate this contention of the learned Counsel, having noticed the relevant observations/findings of the Commission it goes without saying that the comments are nothing but adverse remarks against the petitioner prejudicially affecting his reputation and conduct as a police officer. It does fall within the mischief of Section 10, leaving no room for avoidance of mandate of Section 10. Apex Court in a Constitution bench judgment relating to the interpretation of provisions of J&K Commission of Inquiry Act, particularly Section 10 in case reported in AIR 1967 SC 122, while interpreting the scope and ambit of Section 10 clearly held that the safeguards provided under Section 10 are available to all categories of persons whose conduct was directly involved in the inquiry or whose conduct incidentally comes up for consideration and is likely to prejudicially affect his reputation.
24. In another case titled Kiran Bedi v. The Committee of Inquiry and another, AIR 1989 SC 714 : (1989 Cri LJ 903) the Apex Court considered a similar provision i.e. Section 8B of the Central Commissions of Inquiry Act 1952 and while examining the right of a person whose reputation and conduct is prejudicially affected during the course of Inquiry, the Apex Court held that any person whose reputation is likely to be prejudicially affected or has been affected as per the findings of the Committee, is entitled to the protection provided under Sections 8B and 8C of the Central Act, which inter alia contained the provision as embodied in Section 10 of the said Act. The Apex Court accordingly held (Para 17) :--
"In so far as point No. (ii) is concerned, it would be seen that the use of the word 'or' between Clauses (a) and (b) of Section 8B or the Act makes it clear that section 8B would be attracted if requirement of either Clause (a) or Clause (b) is fulfilled. Clause (a) of Section 8B applies when the conduct of any person is to be enquired into whereas Clause (b) applies to a case whose reputation of a person is likely to be prejudicially affected. As regards the enquiry about the conduct of Smt. Kiran Bedi and Jinder Singh, even the Committee in its interim report specifically stated that the conduct of these two petitioners among others was to be examined. Having once so stated in unequivocal terms, it was not open to the committee to still take the stand that Section 8B was not attracted insofar as they were concerned. Recourse to procedure under Section 8B was not attracted inso far as they were concerned. Recourse to procedure under Section 8B was not attracted in so far as they were concerned. Recourse to procedure under Section 8B is not confined to any particular stage and if not earlier, at any rate as soon as the committee made the aforesaid unequivocal declaration of its intention in its interim report it should have issued notice under Section 8B to the two petitioners, if it was of the view as it seems to be, for which view there is apparently no justification, that issue of a formal notice under Section 8B was the sine qua non for attracting that Section. At all events, the committee could not deny the petitioners the statutory protection of Section 8B by merely refraining from issuing a formal notice even though on its own declared intention the section was clearly attracted."
In another case Board of Trustees of the Port of Bombay v. Dalip Kumar Raghavendranath, (1983) 1 SCC 124 : (AIR 1983 SC 109) while considering the right of a delinquent employee whose reputation and livelihood is likely to be affected in the inquiry, the Apex Court observed (Para 13 of AIR) as under :--
"...The expression, 'life' does not merely connote animal existence or a continued drudgery, through life. The expression 'life' has a much wider meaning. Where therefore, the outcome of a departmental enquiry is likely to adversely affect reputation or livelihood of a person, some of the finer graces of human civilization which make life worth living would be jeopardized and the same can be put in jeopardy only by law which inheres fair procedures."
25. In view Of the findings of the Commission, the manner in which the petitioner was with and the subsequent decision of the State Government initiating action against the petitioner while placing him under suspension and initiating proceedings for his prosecution, I am unable to accept the submissions of the respondents that there are no findings prejudicially affecting the petitioner in the report of the Commission, rather it suggests other way around. There are clear and specific adverse findings/comments against the petitioner which have been relied upon by the Government in initiating action against him.
26. In view of the circumstances referred to above and the law laid down, I am, of the firm opinion that there has been non-compliance of Section 10, warranting quashment of the report of the Commission in respect to the adverse observations/findings against the petitioner as noticed above.
27. What finally emerges from above discussion is :--
(i) There was no evidence/material before the Commission forming basis for findings/comments against the petitioner;
(ii) Findings against petitioner are beyond the scope of reference;
(iii) There has been non-compliance of Section 10 of the Jammu and Kashmir Commission of Inquiry Act 1962.
28. As far as the appointment of Justice G. A. Kuchhai, a retired Judge of this Court and Former Chairman of the State Human Rights Commission, as One Man Commission of Inquiry is concerned, sections 3 & 6 of the State Human Rights Commission Act are relevant for the issue. The same are noticed herein below :--
"3. Constitution of a State Human Rights Commission :
(1) The Government shall constitute a body to be known as the State Human Rights Commission to exercise the powers conferred upon and to perform the functions assigned to it under this Act;
(2) The Commission shall consist of--
(a) a Chairperson who has been a Judge of the High Court.
(b) One Member who is, or hats been or is eligible to be a District Judge;
(c) One Member to be appointed from amongst persons having knowledge or, practical experience, in matters relating to Human Rights;
(3) There shall be a Secretary who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission ' as it may delegate to him.
(4) The headquarters of the Commission shall be at Srinagar and the Commission may with the previous approval of the Government establish offices at other places in the State.
6. Term of office of Members --
(1) A person appointed as Chairperson shall hold office for a term of three years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier;
(2) A person appointed as a member shall hold office for a term of three years from the date on which he enters upon his office and shall be eligible for re-appointment for another term of five years.
Provided that no Member shall hold office after he has attained the age of seventy years.
(3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of India or under the Government of the State.
29. Section 6 (3) debars a Chairman of the Human Rights Commission from accepting any employment. Employment in its literal terms a regular service under the State or Central Government on remuneration. As far as the Commission of Inquiry is concerned, it is not a regular employment so as to bring it within the ambit of Section 6 of the Human Rights Commission Act.
30. It is finally argued on behalf of the respondents that the report of the Commission of Inquiry cannot be challenged in a writ petition. This question is no more res Integra having been set at rest by the Apex Court in AIR 2003 SC 3357.
The Apex Court held as under :
"9. Shri Dinesh Dwivedi, learned counsel appearing for the appellant submits that since no action has been taken against the respondent No. 1 so far, in pursuance of the report of the Inquiry Commission there was no occasion for him to move the Court in the matter. It was not the appropriate stage to raise any grievance by filing a petition challenging certain observations made by the Commission of Inquiry. The petition was thus premature. We feel that it may not be necessary for a person to wait till certain action Js initiated by the Government considering the report of the Inquiry Commission where the observations made by the Commission are such which militate against the reputation of a person and particularly without giving any change to such a person to explain his conduct. It would be open for him to move the Court for deletion of such remarks made against him violating the provisions of Section 8B of the Act."
11. We have already observed that had it been only a question of any adverse action being taken against the person against whom some adverse finding has been recorded, the contention of the learned Counsel for the appellant may perhaps would have been entertain able. The Government actually takes action or it does not or the fact that the report is yet to be considered from that angle, cannot be a reason to submit that it would not be appropriate stage to approach the Court. There may be occasions where after consideration of report the Government may not decide to take any action against the person concerned, yet: the observation and remarks may be such which may play upon the reputation of the person concerned and this aspect of the matter has been fully taken care of under Clause (b) of Section 8B of the Act. It is not, therefore, necessary that one must wait till a decision is taken by the Government to take action against the person after consideration of the report. We have already dealt with the point about the right to have and protect one's reputation. We, therefore find no force in the submission that the respondent No. 1 had approached the Court at premature stage. No other point has been urged on behalf of the appellant. In our view, the judgment of the High Court calls for no interference.
31. Having considered the various aspects, material on record and the findings of the Commission and the law laid down by the Apex Court, there is no escape but to quash the findings recorded by the Commission of Inquiry against the petitioner and also to quash all consequential actions initiated against the petitioner based upon the findings of the Commission of Inquiry, I order accordingly and resultantly this petition is allowed.