In High Court,Govt says PIL seeking probe 'not maintainable'

Union Ministry of Home Affairs and Defence Ministry have submitted before the J&K High Court that the Public Interest Litigation seeking probe into the killing of three Rajouri youth – Abrar Ahmad, Imtiyaz Ahmad and Ibrar Ahmad – in a staged encounter by security forces in Shopian was “not maintainable.”  

As the PIL filed by Jammu & Kashmir Reconciliation Front through its chairman Dr Sandeep Mawa came up for hearing before a bench of Chief Justice Gita Mittal and Justice Puneet Gupta, ASGI T M Shamsi told the Court that the plea was not “maintainable”.  

“This writ petition by a private citizen would not be maintainable in as much as the parents of the deceased have already filed a writ petition at Jammu wing,” Shamsi said.

While advocate Salih Pirzada on behalf of the petitioner sought a short adjournment for ascertaining the nature of the proceedings in the petition filed at Jammu wing, the court asked him to inform it about the same by October 23.

Dr Mawa who is a resident member of minority Kashmiri Pandit community has approached the High Court as the Supreme Court on September 8 had declined to hear the PIL and had asked him to approach J&K High Court.

Seeing pictures of those killed in the fake encounter on social media, the Rajouri families had claimed the slain to be their kin who according to them had gone to Shopian for work. The bodies of the slain have been now exhumed and handed over to families of the victims after families’ DNA samples matched with the deceased.   

The PIL is seeking direction for investigation by a SIT consisting of members other than from J&K Police, to be monitored by J&K High Court in keeping with the law laid down by the SC in Extra Judicial Execution Victims Families Association v. Union of India (2017) and People’s Union for Civil Liberties v. State of Maharashtra (2014).

The PIL is also seeking direction for quashing the investigation initiated by J&K Police with regard to the fake encounter “being illegal” and in contravention to the law laid down by Supreme Court in Extra Judicial Execution Victims Families Association v. Union of India (2017).

The PIL is seeking direction for registration of an FIR by an appropriate agency to investigate the matter in terms of law and guidelines formulated under Article 141 in People’s Union for Civil Liberties v. State of Maharashtra (2014).

While the PIL is seeking direction to Union Ministry of Home Affairs to constitute a High Powered Committee to analyze the aspect of criminalizing Custodial Killings and Fake Encounters by way of a special legislation, it seeks direction to the Ministry to constitute the State Human Rights Commission and Human Rights Courts in terms of Section 21 and 31 respectively in the territory of J&K.

The Petition is also seeking a compensation of Rs 1 crore each to the family of the victims.

The petitioner has submitted that the Government of Jammu and Kashmir has customarily ignored the mandate of law judicially evolved by the Supreme Court to contain, prevent, investigate or penalize the custodial killings and fake encounters “which is predominant in the instant case”.

“Moreover there is no designated court to take cognizance of complaints related to Human Rights Violations as mandated under the Protection of Human Rights Act, 1993 (Section 31) made applicable to the UT of J&K”, he submits.  

The petitioner submits that the law laid down by the apex court on the subject of Extra Judicial Killings and fake encounters in the form of guidelines, even declared as law under Article 141 do not find its way to implementation.

These guidelines, the petitioner said, are instead violated at will as in the instant case, constraining him to seek indulgence of the Court. 

The petitioner further submits that the cardinal principle of criminal jurisprudence is that one alleged of abuse of powers cannot be permitted to investigate his own cause.