Srinagar/ Jammu,Oct 7: Legal experts on Friday said the judicial commission, announced by the state government to investigate the alleged custodial death of National Conference worker Syed Muhammad Yousuf, would have to come out of various hurdles before it can actually start the probe.   
 Experts said the basic provision of investigation provided in Section 154 CrPC which includes immediate registration of the FIR soon after getting the information in cognizable cases has not been invoked in its absence the judicial probe will be no longer useful especially in view of the delay involved in it.
 “There are many complexities which need to be thoroughly investigated. Firstly, the Crime Branch registered an FIR No.17/2011 u/s 420 RPC and that too five hours after the incident was reported to the Inspector General (IG) Crime,” they observed.
 Later, the Police sent a report to District Magistrate Srinagar with a request to order inquest proceedings under section 176 of CrPC into the death of Yousuf.
 Secondly, judicial commission cannot collect scientific and on-the-spot evidences as it does not have any investigating agency to execute the task, a prominent lawyer, preferring not to be named said. 
 Experts said the judicial probe by a sitting judge was a lengthy process and it may take one or two years to start investigation into the case as there is specific procedure for appointment of a sitting judge for the commission of inquiry.
 “The Chief Justice of any High Court is not the authority to appoint any sitting judge under him to conduct such a probe without consent from the Supreme Court and President of India,”  the experts said. “In Jammu and Kashmir situation is graver as 50 per cent posts of the HC judges are lying vacant from last over six months.”
 Talking to Greater Kashmir, former Chief Justice of Jammu and Kashmir High Court Bashir Ahmed Khan said that there is a procedure to be followed for an appointment of a sitting judge as a judicial commission is an outside court inquiry. Besides, he added the process is “time consuming” since it has to follow a long procedure.
 “Such an appointment involves consultations and clearance at various stages.  First the Chief Justice of High Court has to see whether he can spare any sitting judge for the commission in the light of workload of the court. Once the Chief Justice deems it fit to spare a sitting judge, he has to forward his name to Chief Justice of India. And ultimately to be cleared by President of India,” Khan said.
 Former Chief Justice Bilal Nazki endorsed the comments. “There are two restrictions one created by another statue and the second one created by a judgment of Supreme Court. There is an Act known as The High Court Judges (Salaries and Conditions of service Act) 1954. It defines actual service of a judge as; time spent by a judge on duty as a judge or in the performance of such other functions as he may discharge at the request of President of India,” he stated.
 The judge, he said, if accepts an assignment without a request from President of India will be in violation of the law.“To make such a request, the President of India has to be approached through the union council of ministers which is a requirement under constitution. The second restriction is place by a judgment of Supreme Court which says that because of huge pendency and some other reasons sitting judges should not ordinarily be appointed as commission of inquiry,” he added.

Lastupdate on : Fri, 7 Oct 2011 21:30:00 Makkah time
Lastupdate on : Fri, 7 Oct 2011 18:30:00 GMT
Lastupdate on : Sat, 8 Oct 2011 00:00:00 IST