HC stays re-investigation of Kunan-Poshpora mass rape

Greater Kashmir

Directs JK Govt to file response to Army petition

Srinagar, Jan 15: The Jammu and Kashmir High Court Thursday stayed re-investigation into the Kunan-Poshpora mass rape in which army soldiers allegedly raped over 40 women in the twin villages of north Kashmir’s Kupwara district, in 1991.
“Till next date, subject to objections of the other side, the impugned order dated 18-6-2013 and 8-8-2014 shall stay (Sic),” a bench of Justice TashiRabstan ordered, while issuing a notice to the state government on a petition by Army, against the reinvestigation, within two weeks. The court ordered the case be listed after two weeks.  
Soldiers of Army’s 4-Rajputana Rifles of 68 Brigade allegedly raped over 40 women in Kunan and Poshpora villages during the intervening night of February 23-24, 1991. Following massive public outcry, Police lodged an FIR vide no 10/1991 against Army under various criminal sections at police station Trehgam.
In its order of June 18, 2013, the court of Judicial Magistrate Kupwara had ordered that a police officer not below the rank of Senior Superintendent of Police should re-investigate the case within three months. And vide order dated August 8, 2014, the Principal Sessions Judge Kupwara had dismissed a revision petition by army against the order of Judicial Magistrate Kupwara.
The Judicial Magistrate Kupwara had directed for further investigation into the case after the victims filed a protest petition in the court against the police closure report.

In the petition by GOC 28 Infantry Division against reinvestigation in the case, the Army has stated an officer is empowered and authorized to examine, enquire and try its personnel “subject to Army Act” under his control in respect of the allegation attributed to them while on “Active Service” in J&K.
“What is the course open to a Magistrate when a Closure Report under Section 173 OfCrPC is laid before it by the Station House Officer in-charge of a Police Station. Whether law permits the Magistrate to record
evidence and thereafter direct further investigation,” the petition states, adding, “Whether a Judicial Magistrate at the time of consideration of final police report or compliant can rely upon the unaccepted findings/observations of State Human Rights Commission to decide the further course of action in the compliant police /report; Whether or not the findings of the Commission in evidence and whether magistrate can rely thereon to decide further course of action while dealing with proceedings on Closure Repent.”
The petitioner seeks to know whether the directions/findings of the J&K SHRC are relevant for investigation of offences under the RPC.
In 2011, the J&K State Human Rights Commission (SHRC) recommended to the Government to re-investigate the case. The Commission asked for constitution of a Special Investigation Team headed by an officer not below the rank of Superintendent of Police to conduct the re-investigation. However, the Government has done little to act on the recommendations.
On November 9 last year, the Special Investigating Team (SIT) probing the case had pleaded before the High Court that the Union of India be directed to provide information about 125 Army personnel who conducted search operation during the night of 23/24 February when the mass rape took place.