A second FIR regarding the same incident is prohibited, but a counter FIR is permissible under law.

JUDGMENT :

1) The petitioner Union Territory of J&K, through the medium of present petition, has challenged order dated 30.04.2022, passed by Judicial Magistrate 1st Class(2nd Additional Munsiff), Srinagar, whereby, inter-alia, direction has been issued for registration of FIR and Senior Superintendent of Police, Srinagar, has been directed to replace S.P. North as head of the Special Investigation Team (SIT) by some competent officer.

2) Before coming to the contentions raised in this petition, it would be apt to notice the background facts leading to the filing of this petition.

3) On 01.06.1996, Police Station, Khanyar, Srinagar, received a written information from SHO Police Station, Rainawari that on 31.05.1996 at about 2300 hours an information was received that some terrorists are hiding along with their illegal arms and ammunition at Miskeenbagh Khanyar. Upon this information the area was cordoned-off and during operation, terrorists resorted to indiscriminate firing upon the security forces and police with an intention to kill them. It was further reported that firing was retaliated, as a result of which two terrorists, namely, Mehraj-du-din and Mohammad Ramzan Bhat, Commander and Company Commander of Hizbul Mujahideen, were killed/injured. It was also reported that arms and ammunition were recovered from the spot. The other terrorists were reported to have fled away from the spot. On the basis of this docket, FIR No.88/1996 for offences under Section 307, 121-A RPC, 7/25 Arms Act and 4/5 Exp. Sub. Act was registered with Police Station, Khanyar and investigation was set into motion.

4) It seems that investigation was closed as untraced but on 05.05.2006, certain observations were made by the Zonal Police Headquarter, Srinagar, and the case was re-opened to be investigated by a Special Investigation Team. After conducting investigation, the SIT submitted closure report before the learned Judicial Magistrate 1st Class (2nd Additional Munsiff), Srinagar, on 15.03.2021.

5) On 1st April, 2021, Jameela Bano, who happens to be the wife of deceased Mohammad Ramzan Bhat, filed a protest petition before the learned Judicial Magistrate. After recording statements of the protest petitioner, Smt. Jameela Bano, and other witnesses, the learned Magistrate passed an order on 28.10.2021, whereby SSP, Srinagar, was directed to constitute a Special Investigation Team headed by an officer not below the rank of Dy. SP, to investigate the case. It was further directed that role of the then Investigating Officer, SHO, P/S Rainawari and other officials in investigation of the case before its reopening in the year 2006 be also gone into. It was also directed that role of the SIT for delaying the investigation for about three years be also gone into. Finally, the SSP was directed to conclude investigation in a time bound manner, preferably within a period of six months.

6) It seems that while the investigation in terms of the directions dated 28.10.2021 passed by the learned Magistrate was going on, the protest petitioner made several applications before the learned Magistrate seeking status report of the investigation. The learned Magistrate passed a number of directions from time to time expressing his dismay over the pace of investigation and also sought personal appearance of the head of the SIT, SP North, Srinagar.

7) On 02.12.2021, the learned Magistrate, after perusing the status report filed by SSP, Srinagar, observed that it is not clear from the said report whether the identified persons, namely, Mir Hussain, then then SHO P/S Rainawari and Constables Noor-ud-Din, Ali Mohammad, Sub Inspector Mohammad Sabir, Azam Gujar and Abdul Majeed, have been arrested or whether any fresh FIR has been registered against them.

8) Ultimately, vide the impugned order, the learned Magistrate besides expressing his dissatisfaction about the pace and the manner of investigation that was being conducted under the guidance of SP, North, Srinagar, noted that the