Jaffar Ali vs State Of Jammu & Kashmir And Ors

Petitioner has filed the above titled writ petition seeking direction to the respondents to conduct the investigation fairly and properly and also for recording the statement of the material witnesses by re-opening the case closed by respondent No.5 or in the alternative, the investigation of the said murder may ordered to be conducted either by the Crime Branch or some other Police Agency preferably through CBI.

Brief facts which arise for consideration are that the father of the petitioner was murdered and an FIR under Sections 302/120-B RPC was registered with police Station Gandoh. Petitioner's grievance is that the respondents have sheltered the accused and had closed the investigation at the back of the petitioner. He states that he came to know about the closure of the case by the police and sought re-investigation into the matter by moving an application before the Chief Judicial Magistrate, Doda, who on receipt of the said application transferred it to the learned Judicial Magistrate, 1st Class, Gandoh. Learned Judicial Magistrate, 1st Class, Gandoh to whom the said application was transferred, instead of passing some order virtually handed it over to the then SHO Gandoh and the said SHO has shown no interest in the investigation of the case nor has recorded the statement of any of the witnesses.

Petitioner, thus, submits that his father-Shukar Din was murdered by a masked man, who had come to enquire about the health of Bashir Ahmad, brother of the petitioner's father. Petitioner's father accompanied that mask man and after sometime, the petitioner heard the bullet firing noise and found his father lying in the pool of blood by a bullet injury at his head and died on spot. Special Task Force (STF) and army came on spot and removed the body of the father of the petitioner and placed it within four walls of the house of the petitioner and thereafter STF took the body of father of the petitioner for post-mortem at Kahra and also took the petitioner and his brothers with them for Kahra. It is also stated that meanwhile, the militants warned Abdul Qayoom who is also resident of same village not to disclose the name of any local to Security Forces, otherwise the petitioner's family would have to face dire consequences. Thus, the petitioner did not take any step against the culprits as the militancy was at its peak in the said area. It is submitted that closure report stands filed and from perusal of the closure report, it seems that within a span of two months, the police had closed the investigation by giving vague and illogical reasons.

Objections have been filed by respondent Nos.1 to 5 and they have stated that the Investigating Officer had visited the spot, prepared the site plan of occurrence, conducted the post mortem of the deceased and also recorded statement of prosecution witnesses under Section 161 Cr.P.C. On the basis of the statement of prosecution witnesses, prima facie case under Section 302/120-B RPC was proved against the unknown militants, who were absconding after commission of offences. Respondents further submits, that the police agency could not apprehend the accused persons and also failed to trace them, as such, case was finally closed as 'untraced' vide Ikhtatami No.61/2000 dated 25.10.2000. Thus, the respondents have stated that the investigation has been conducted fairly and impartially and since the accused persons could not apprehended in spite of reasonable efforts, as such, the investigation was closed. Respondents further submits that the closure report was filed on 28.10.2000 and the petitioner being aware of the fact and approached this Court after more than ten years, as such, this petition is hit by delay and laches.

Petitioner himself did not make any effort to oppose Ikhtatami No.61/2000 dated 25.10.2000 and accepted the said closure report for more than 10 years and as such, cannot turn around and seeks its re-opening.

In view of the submissions, there is merit in the submissions made by learned respondents' counsel. Respondents have conducted the investigation and since the offences committed by the militants, who could not be traced, have filed the closure report. Petitioner after accepting the closure report cannot turn around and challenge the same and directed investigation after more than 19 years which stands closed. Delay in approaching the Court is a fatal for the relief sought by the petitioner.

For the reasons stated above, there is no merit in this writ petition and same is, accordingly, dismissed alongwith connected IA, if any.