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2014 Supreme(J&K) 108
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Virender Singh , J.
Mohd. Abdulla Baba -Appellant
Versus
State Of J&K & Ors. -Resopndent
HC(W) No. 167-2008
Decided On : 20-02-2014
Z.A. Qureshi, K.S. Wazir.
The decision of the Competent Authority to refuse sanction for prosecution under Section 7 of the J&K Armed Forces Special Powers Act, 1990 is subject to judicial review and must be based on a sound objective assessment of the entire facts.
Headnote:
Habeas Corpus - Custodial Death - J&K Armed Forces Special Powers Act, 1990 - Section 4, 5, 6, 7 - The court directed the Competent Authority to examine the entire case afresh and take a fresh decision on whether to accord sanction for prosecution of the accused under Section 7 of the Act within a period of two months.
Fact of the Case:
Mehraj-ud-Din Baba, a student, was picked up by Border Security Force personnel and his dead body was handed over to the police. The investigation revealed that BSF personnel were involved in the custodial death.
Finding of the Court:
The court found that the Competent Authority's decision to refuse sanction for prosecution was bereft of reasons and suffered from non-application of mind. The court directed the Competent Authority to re-examine the case and take a fresh decision.
Issues: The issues included whether the Competent Authority's decision to refuse sanction for prosecution was subject to judicial review and whether the decision was bereft of reasons and suffered from non-application of mind.
Ratio Decidendi: The court held that the Competent Authority's decision to refuse sanction for prosecution was subject to judicial review and that the decision was bereft of reasons and suffered from non-application of mind.
Final Decision: The petition succeeded, and the impugned order refusing to accord sanction for prosecution was quashed. The Competent Authority was directed to re-examine the case and take a fresh decision within a period of two months.
2. Mehraj-ud-Din Baba aged 18 years son of the petitioner and a student of 12th class was picked up by Border Security Force personnel on 23.12.1992 and on 25.12.1992 his dead body was handed over to Police Station Soura. In this connection F.I.R. No. 260/92 came to be registered in Police Station Soura at the instance of one Ghulam Hassan HC. In the F.I.R. name of SI of BSF Sh. Gurbachan Singh was mentioned as he had brought the dead body to the Police Station. The dead body was brought from Far View Guest House (FVGH). It is mentioned in the F.I.R. that the deceased was arrested by 107 BN B.S.F. on 23.12.2012 near Ali Mardan Khan Bagh, Nowshehra.
3. Petitioner being apprehensive that the investigation of the present case would not be properly conducted, filed HCP No. 287/1993 in this Court, in which, the Court took a serious note of the pace in which the investigation was being conducted and gave direction for completing it within a stipulated period, reference in this regard, can be had from an order dated 22.10.1996. It reads: -
"It is very strange that a case of murder and custodial death was registered way back in the year 1992 under FIR No. 260 of 1992, P/S Soura and on the directions of this Court passed on 29.06.1995, respondents i.e. Investigating Officer and respondent No. 2 Director General of Police, J&K were made answerable to apprise the Court regarding progress and outcome of the investigation. At one stage Officer Incharge, P/S Soura Mr. Ab. Rashid Khan came forthwith with an affidavit in compliance of the court directions stating therein that as per investigation conducted, person of one B.K. Singh (SI) G of 107 BN BSF was found involved in the matter. It was also apprised to the Court that his whereabouts are being traced out and located.
On 19.12.1995, again an affidavit was filed by Mr. P.S. Gill, Inspector General of Police, stating and reiterating the fact that as per investigation conducted, Shri B.K. Singh has been prima facie found involved in the commission of offence. It is also revealed that said Singh is reported to have died in an encounter on 24.12.1992, for which FIR No. 89 of 1992 P/S Nowhatta stands registered. It has also been stated by Mr. Gill that the investigation is still going on and they will apprise the Court about latest position. Since 19.12.1995 till date, more than eleven months have passed. The case diaries which have been made available before me are showing poor performance of the Investigating agency.
The slackness and indifferent attitude shown by the Investigating agency speaks volumes. Though court has been assured that the investigation will be completed within the stipulated period as was ordered by the Court in its order dated 25.06.1995, but that direction has not been complied with in letter and spirit. Long rope given to the investigating agency and not making themselves answerable before the court seems that perhaps they are under the impression that they have to follow go slow policy in the matter and the matter will be shelved. Be it known to the persons at the helm of affairs that whosoever has committed an offence, will not be spared at any cost. Howsoever high he may be and wherever he may be, he will be traced out and put to regular trial and the ends of justice will be served. The policy of go slow will not come to the rescue of the Investigating Officer or bail out the culprits. The persons who with impunity have at one stage managed to kill the people or in any way cause custodial deaths and the cases stand registered against them, shall not be spared.
Here in this case, I call upon the investigating agency to apprise me of the latest case diaries, because I don't find any progress from 20.01.1996, the last proceedings recorded in the case diaries. What is improvement from 20.01.1996 till date i.e. 22nd of October, 1996 is not known.
Mr. Mustaffa appearing for this respondents seeks so
