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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Kumar Gupta, J.
Muhammad Yaseen Malik and Ors. - Appellants
Vs.
State of J&K and Ors. - Respondent
OWP No. 395/2019, IA Nos. 1/2019, 2/2019, OWP No. 396/2019 and IA No. 1/2019
Decided On : 26-04-2019
Constitution of India,1950 – Section 136 - Ranbir Penal Code,1932 – Section 302/307,120-B r/w 364,368,109 and 34 - Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) – Section 3(1),3,4 and 11(2) - Delhi Special Police Establishment Act, 1946 – Section 5 and 6 - Indian Arms Act – Section 3/25 and 27 – Firing – Air Force Employees - With regard to an incident which occurred involving Air Force employees were fired upon by terrorists, FIR came to be registered by Police Station against unknown persons - In this firing 40 Air Force employees including a lady received serious injuries while two Air Force personnel were killed on the spot - Notification came to be issued thereafter by Government of Jammu & Kashmir under Section 6 of the Delhi Special Police Establishment Act, 1946 as well as a notification was issued by the Government of India under section 5 of the DSPE Act resulting in the investigation of case being taken over by Central Bureau of Investigation - Case was registered by the CBI - On completion of investigation, a charge sheet was filed against one and five others, before designated TADA Court at Jammu which was 3rd Additional Sessions Judge, Jammu - Whether notification constituting such Court is issued before or after issue of notification constituting Designated Court by State Government – Held, though High Courts have very wide powers under Article 226, very vastness of powers imposes on it responsibility to use them with circumspection and in accordance with judicial consideration and well established principles - Legislative history and object of TADA Act indicate that special Act has been enacted to meet challenges arising out of terrorism and disruption - Court totally agree with view taken by this Court that if High Court is inclined to entertain any application under Article 226, that power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances - Court would like to emphasize and reemphasize that judicial discipline and comity of courts require that High Courts should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicated under the special Act since this Court has jurisdiction to interfere and correct order of High Courts under Article 136 of the Constitution - In case High Court entertains any petition against order of Designated Court established under TADA, then very scheme and object of the Act and intendment of parliament would completely be defeated and frustrated - This argument is also not tenable, because courts are not required to see nomenclature of petitions but has to see intention of parties in filing the petitions - From bare perusal of contents of petitions and relief sought therein, one can definitely come to conclusion that petitioners have sought transfer of their cases from designated court Jammu to additional court at Srinagar, which is not permissible under law - In view of what has been discussed, these petitions are dismissed.
ORDER :
Sanjay Kumar Gupta, J.
1. Both these writ petitions have been filed in similar circumstances and facts situation and raise identical questions of law, therefore, they are being taken up together for consideration.
OWP No. 395/2019
2. With regard to an incident which occurred on 25.01.1990 at about 7:30 AM involving Air Force employees at Rawalpora, Srinagar, were fired upon by terrorists, FIR No. 22 came to be registered by Police Station Saddar, Srinagar, under Sections 302/307 of Ranbir Penal Code (RPC), 3(1) Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and 3/25 Indian Arms Act, against unknown persons. In this firing 40 Air Force employees including a lady received serious injuries while two Air Force personnel were killed on the spot.
3. A notification came to be issued thereafter by the Government of Jammu & Kashmir on 22.02.1990 under Section 6 of the Delhi Special Police Establishment Act, 1946 (DSPE hereinafter) as well as a notification dated 01.03.1990 was issued by the Government of India under section 5 of the DSPE Act resulting in the investigation of the case being taken over by the Central Bureau of Investigation ('CBI' hereinafter). The case was registered by the CBI as RC 1(S)/1990/SIU.V/SC-II)
4. On completion of investigation, a charge sheet was filed on 31.08.1990 in the case by the CBI under Section 120-B read with Section 302 RPC, Sections 3 and 4 of TADA Act and Section 27 of the Arms Act against Muhammad Yaseen Malik and five others, before the designated TADA Court at Jammu which was the 3rd Additional Sessions Judge, Jammu.
5. During the pendency of the trial before the court of 3rd Additional Sessions Judge (TADA) Jammu, a petition dated 25.10.2008, came to be filed on behalf of the accused persons under SRO 168 dated 01.05.1990 read with SRO 70 dated 05.02.1991 seeking transfer of the case to the designated court at Srinagar. The CBI filed objections and opposed the application which came to be rejected by an order dated 20.04.2009.
OWP No. 396/2019
6. This case related to the incident when Dr. Rubiya Syed, was kidnapped while she was going in a Tata Mini Bus from Lala-Ded Hospital, Srinagar, to her house at Nowgam, and taken to some unknown place by some unknown terrorists travelling in the same mini bus who threatened to kill her in case their illegal demands were not met and created terror amongst all the passengers by showing gun and pistols to them. In this regard, FIR No. 339 was registered on 08.12.1989 by Police Station Saddar, under Sections 364, 368 RPC, Section 3 (1) TADA Act and 25 Indian Arms Act, against unknown persons.
7. Investigation in this case was also assigned to the CBI on the basis of notification issued by the Jammu & Kashmir Government on 22.02.1990 under Section 6 of the Delhi Special Police Establishment Act, 1946 (DSPE hereinafter) as well as a notification dated 01.03.1990 issued by the Government of India under Section 5 of the DSPE Act. The case was registered by the CBI as RC 07 (S)/1990/SIU.V/SC-II).
8. After completion of the investigation in the case, the charge sheet in this case was filed by the CBI on 18.09.1990 under Section 120-B read with Sections 364, 368, 109 and 34 RPC, Section 3 (1) TADA and Section 27 of Arms Act, before the designated court under the TADA Act being the court of 3rd Additional Sessions Judge (TADA Cases) Jammu.
9. During the pendency of trial in this case as well, on 25.10.2008, an application was filed by the accused persons under SRO 168 dated 01.05.1990 read with SRO 70 dated 05.02.1991 seeking transfer of the case to the designated TADA Court at Srinagar. CBI filed objections and opposed the application which came to be rejected by the order dated 20.04.2009.
10. Aggrieved of the order dated 20.04.2009, two writ petitions bearing OWP No. 431/2009 & OWP No. 432/2009 came to be filed by the petitioners/accused persons in Srinagar Wing (subsequently allotted OWP Nos. 395/2019 and 396/2019 respectively, on these being tr
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