Bhola Ram Singh and others vs State of J&K and others

Petitioners have invoked the inherent jurisdiction of this Court in terms of Section 561-A of J&K CrPC (since repealed (akin to section 528 BNSS 2023) for quashing the proceedings against them in challan No. 30/2006 dated 1205.2006 titled “State Vs. B.R Singh & Ors.”, pending before the Court of learned Sub-Judge, Bhaderwah, arising out of FIR No. 67/1995 dated 01.06.1995 registered at Police Station, Bhaderwah, for the commission of the offences punishable under Sections 302, 452, 149, 148 & 382 RPC.

It is pleaded in the petition that the petitioner No. 1 is a retired CRPF Officer, who at the time of retirement, was holding a substantive post of Commandant 103 RAF, petitioner No. 2 had retired as Hawaldar from CRPF in the year 2003, petitioner No. 3, after serving in CRPF, retired on 30.11.2006, while holding the substantive post of Assistant Commandant in CRPF and the petitioner No. 4 attained superannuation on 30.06.2006 and was holding the post of Sub-Inspector CRPF, Group Centre, Gurgaon.

It is asserted that they while serving in 120 Battallion, CRPF at Bhaderwah in December, 1994, received an information from reliable resources that militants have infiltrated into Bhaderwah town to indulge in various anti-national activities during the intervening night of 31.12.1994/01.01.1995, as a result, during the intervening night of 30.12.1994 & 31.12.1994, the cordon was laid at various places and searches of the area were carried out; that while conducting the search, when the party headed by petitioner No. 1, knocked at the house of one Bilal Ahmed Butt, resident of Masjid Mohalla, at about 6:45 a.m, his wife opened the door and after seeing the CRPF party outside, she closed the door on the plea that her children were sleeping; that CT. Rajinder Kumar of CRPF opened the door and forced his entry inside the house, consequently, the militants got alerted and fired at Constable-Rajinder Kumar, who succumbed to his injuries on spot and militants also opened fire upon petitioner No. 1, taking positions; that an encounter ensued, in which two militants, namely, Shahid Malik and Ghulam Abass got killed and in the cross fire, the house owner-Bilal Ahmed Butt also got killed; that the aforesaid operation was carried out under the supervision of respondent No. 3-Additional Superintendent of Police, Bhaderwah.

It is further pleaded in the petition that as in the encounter, Constable Rajinder Kumar was killed by the militants, accordingly, FIR No. 201/1994 was registered at Police Station, Bhaderwah for commission of offences punishable under Sections 307 & 302 RPC, 3/4 TADA & 3/25 Arms Act; that after thorough investigation, Final Report No. 137 dated 31.12.1994 was filed before the Court, in which it was mentioned that the owner of the house, Bilal Ahmed Butt was killed in the encounter.

It is alleged that for the above-mentioned occurrence, second FIR No. 67/1995 was registered on 01.06.1995 at Police Station, Bhaderwah on the written complaint of Smt. Kusum Begum-the mother of the deceased, Bilal Ahmed Butt, for alleged commission of offence punishable under Section 302 RPC, against the petitioners and some others; that this case was again investigated by Bhaderwah police and upon completion of investigation, Report No. 07 dated 04.06.1996 was filed before the learned Sub-Judge, Bhaderwah, from the perusal whereof, it is evident that respondent No. 5, after conducting a detailed investigation, had closed the proceedings as “not admitted”; that the learned Sub-Judge, Bhaderwah, however, was not satisfied with the aforesaid report and, accordingly, vide order dated 17.04.2002, directed re-opening of the investigation in FIR No. 67/1995; that on further investigation, the case was concluded into a chargesheet against the petitioners, which was laid before the court of law.

The petitioners are, thus, aggrieved of chargesheet No. 30/2006 dated 12.05.2006, presented against them for the commission of offences punishable under Sections 302, 452, 148, 149 and 382 RPC wherein non-bailable warrants were issued against the petitioners and subsequently, the learned Sub-Judge Bhaderwah reviewed its own order and in terms of Section 549 Cr.PC gave an option to the Commanding Officer of 120 Bn., CRPF, for exercising option for the trial of the petitioners, though there was no question of court martial of the petitioners as CRPF officers/officials.

In the aforestated factual background, petitioners, assailing the impugned chargesheet, seek quashing thereof on the two grounds; firstly that no second FIR, wherefrom chargesheet impugned herein had resulted, could be registered, when already with regard to the same occurrence, wherein a CRPF Jawan had also got killed, an FIR had been registered and concluded, indicating that the deceased Bilal Ahmad Butt, in whose house encounter had taken place causing death of two militants and a CRPF Constable, had also died in cross fire; and secondly the petitioners having the legal protection of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 cannot be prosecuted, without a valid sanction to prosecute them, in terms of this Act.

Pursuant to notice, objections have been filed by the respondents, asserting therein that this petition raises disputed questions of facts; that the petitioners have also suppressed the material facts of the case from the Court ; that during investigation, a ‘prima facie’ case has been made out against the petitioners; that after recording the statements of complainant Kulsum Begum and one-Mst Asia Begum, i.e., widow of the deceased-Bilal Ahmed, who were eye witnesses, the Court directed the Police Station, Bhaderwah for further investigation, which has since been completed and the impugned challan has been produced before the Court of law. Finally, it has been prayed that the instant petition be dismissed.

Learned senior counsel appearing for the petitioners argued that the impugned challan has been produced in violation of legal provision of Section 7 of the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990, as no prior sanction of the Central Government was obtained for prosecuting the petitioners; that for one incident and one occurrence, two separate FIRs were lodged, which is illegal and irregular as for one occurrence, i.e., encounter on 31.12.1994, two separate FIRs were lodged; that there cannot be second FIR in respect of the same cognizable offence, same incident or same occurrence and for one incident, two separate FIRs were lodged and subsequently, two contradictory final reports were filed by the prosecution; that as per the prosecution’s own case in the Final Report No. 137 dated 31.12.1999 arising out of first FIR No. 201/1994, it was specifically mentioned that deceased Bilal Ahmed Butt was killed in an encounter, which took place in the morning of 31^st December, 1994 and was not murdered by the petitioners, whereas in Final Report No. 7 dated 04.06.1996 arising out of second FIR No. 67 of 1995, it was concluded specifically that deceased Bilal Ahmed Butt was murdered.

Mr. Sethi further argued that the learned Sub-Judge, Bhadewah, suo-motu, re-opened the case after a gap of six months, vide order dated 17.04.2002, abused the process of law, resulting into miscarriage of justice to the petitioners, and after a long delay of six months ordered to lodge FIR, as a result FIR No. 67/1995 was registered; that after investigation challan was produced without seeking prior sanction from Government of India under Section 197 Cr.PC, and in terms of the AFSPA, which is a pre-requisite, as the petitioners at the time of alleged occurrence, were in active service of armed force of Union of India. Finally, it has been prayed that the challan pending adjudication before the court of learned Sub Judge, Bhaderwah, against the petitioners be quashed.

Mr. Adarsh Bhagat-GA, learned counsel for the respondents, ex-adverso, argued that the gravity of charge against the petitioners is based upon a complaint lodged by one-Smt. Kusum Begum, the complainant in the case, who has alleged that her son-Late Bilal Ahmed was dragged from her house and shot dead in the broad day light by the CRPF personnel under the command of petitioner No. 1 and that the petitioners and others are responsible, for the death of her son; that this court, while invoking inherent jurisdiction, cannot conduct a mini-trial in a case so as to return a finding as is being agitated by the petitioners through their petition, seeking quashment of the chargesheet arising out FIR No. 67/1995 registered at Police Station, Bhaderwah.

Learned counsel for the respondents further submits that after registration of the case against the petitioners on the complaint of the mother of the deceased-Bilal Ahmed Bhat, the case was investigated and the chargesheet had been laid against all the petitioners and as per his information, the case had been committed to the Sessions Court for trial where the matter is under consideration of the charge/discharge.

The learned senior counsel appearing for the petitioners submitting that two of the petitioners have passed away during the pendency of this petition, conceded that the matter has been posted for consideration of charge before the trial court.

Heard learned counsel for the parties, perused the record and considered the matter.

Though the petitioners have challenged the chargesheet on various grounds including that two FIRs cannot be registered arising out of the same occurrence, however, as per the FIR lodged by the mother of the complainant, a case has been investigated and chargesheet has been concluded on the ground that the complainant’s innocent son Bilal Ahmed Bhat had been dragged out from his house after the encounter was over and was killed outside his house without his involvement in any terrorist activity. In this backdrop, the contention on behalf of the petitioners, who are accused to have killed the deceased, after the encounter, regarding registration of two separate FIRs, about the same incident/occurrence is a factual aspect of the matter, which cannot be gone into by this court, exercising inherent jurisdiction. In view of the settled law that this court cannot conduct a mini trial for ascertaining the truth. In the face of the rival submissions, such a course would be available during trial, as such, this ground is found to be untenable and is rejected.

The second contention raised in this petition is with regard to applicability of the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 of which Section 7 provides that in a chargesheet presented against the members of the Armed Forces for any offence during an official duty in disturbed areas, cognizance can be taken by the court on prior sanction to prosecute from the Central Government. Both the counsel for the parties have admitted that Doda district was a declared disturbed area at the relevant point of time and the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 was, thus, applicable to the case of the petitioners being members of the Armed Forces (CRPF), while being posted in Bhaderwah, where the alleged occurrence had taken place on 31.12.1994.

The Apex Court in the recent judgments titled “Rabina Ghale & Anr Vs. UOI & Ors and Anjali Gupta Vs. UOI & Ors” has held that proceedings are liable to be continued provided sanction for prosecution is granted under the Armed Forces Special Powers Act, and it was directed that the proceedings pursuant to the impugned FIR shall remain closed and in case sanction is granted, at any stage, under AFSP Act, the proceedings pursuant to the impugned FIR may continue and may proceed in accordance with law and be brought to a logical conclusion.

In this legal backdrop, the impugned chargesheet is not liable to be quashed, by this court, exercising inherent jurisdiction, without affording an opportunity to produce the requisite sanction to prosecute by the trial court, at the time of consideration of charge/discharge.

Since the matter is stated to be posted for consideration of the charge, by the trial court at the stage of charge/discharge, this petition is dismissed at this stage, with a direction to the trial court to proceed in the matter, subject to production of requisite sanction to prosecute, from the competent authority, in terms of Armed Forces (Jammu & Kashmir) Special Powers Act, 1990.

A copy of the judgment shall be forwarded to the court of learned Principal Sessions Judge, Bhaderwah, for information and compliance.

This petition is, accordingly, disposed of along with connected application(s), in the above terms.