In a significant judgment, the Jammu and Kashmir High Court on Thursday dismissed the government's plea against the orders of Chief Judicial Magistrate Srinagar whereby Senior Superintendent of Police Srinagar was directed to file an FIR against DySP Yasir Qadri for allegedly killing a man in Tengpora Batamaloo on July 10.
"In the background of the facts, circumstances and the law as noticed, the Chief Judicial Magistrate has exercised the power well within the confines of law. Both the orders dated 18-7-2016 and 28-07-2016 are in conformity and in consonance with law, do not suffer from any illegality," a bench of Justice Muhammad Yaqoob Mir said, while upholding the orders of CJM Srinagar Masarat Shaheen.
"A word of caution, in the event of any default in implementing the order, the CJM shall proceed in accordance with the law and if required adhere to the procedure governing the contempt proceedings," the Court said while dismissing the petition as "being devoid of merit."
In its argument, the state's counsel had said: "Angry protestors who were led by the deceased Shabir Ahmad Mir son of Abdul Rehman Mir were armed with stones and sticks and were blocking the road. The mob was dispersed and in the process the deceased got injured was taken to hospital by his other co-pelters and in this regard an FIR 89 /2016 was lodged."
But, Abdul Rehman Mir, father of the victim—through his counsel Z A Qureshi—pleaded that the first occurrence is when alleged angry mob was protesting and they were dispersed and in this connection first FIR 89/2016 was registered for the commission of offences under sections 147 (rioting), 148 (rioting armed with deadly weapon), 307 (attempt to murder), 436 (mischief by fire or explosive substance) and 152 RPC (Assaulting or obstructing public servant when suppressing riot).
"The said FIR was lodged on the basis of the report forwarded by SG Constable to Police Station Batamaloo and the information in the FIR is shown to have been received at police station at 5:20 PM on July 10, 2016," Qureshi pleaded.
"The second occurrence is when police party headed by DySP entered into the house of the respondent (Abdul Rehman) at about 6.45 pm on July 10 along with accompanying police officials and started smashing windowpanes of the house, causing damage; Abdul Rehman and his wife and his son were watching television. Wife of the Abdul Rehman objected to causing of damage due to which police party got infuriated and they started beating her which was objected to by her son (Shabir) as a result DySP fired two shots from his pistol and caused death of Mir in his house," he pleaded.
"The deceased in that condition had been taken to JVC hospital at Bemina where he was declared as brought dead," Qureshi pleaded.
"First occurrence has taken place at 5.20 pm regarding which FIR has been registered, the second occurrence is not a part of the same transaction because the first occurrence was over when the case was registered on the basis of detailed report as reflected in the FIR. The killing of Shabir Ahmad is second occurrence," he pleaded.
After hearing the parties, the court said: "The question of one occurrence and then second occurrence form part of the same transaction—in the stated set of circumstances—at this stage is totally unimaginable."
"Regarding first occurrence in respect of which incident report had been submitted by the police constable to the police station, a case has been registered vide FIR No 89/2016 and the time is shown as 17.20 (which 5. 20 pm) which would mean that said occurrence had come to an end. The second occurrence, according to averments, averred in the application filed by the respondent, has taken place at 6.45 pm, that too in the house of the respondent, as referred to above," the court said in its judgment on Thursday.
"How the second FIR could be said to be the part of first occurrence is totally bereft of any logic?" it said.
"In this backdrop of rival submission and the facts, the test of sameness has to be applied. It is trite that registration of second FIR in respect of same offence or incident forming part of the same transaction as contained in the first FIR is not permissible but it is also settled that an incident which does not fall within the ambit of the report lodged first, then registration of second FIR is permissible," the court said.
"As per incident report filed before the police station at 17.20 (5:20 pm), deceased was injured during dispersal of mob but according to the application filed by the respondent, police party headed by DySP entered into their house at 6.45 pm on 10.7.2016, means on the same time it was second occurrence," the court observed.
"The position of occurrence having taken place at 6:45pm is apparently supported by the copy of Emergency Ticket issued by SKIMS Medical College, Bemina and the copy of the medical certificate regarding cause of death shown to have been issued by the Casualty Medical Officer SKIMS Bemina wherein it clearly recorded that Shabir Ahmad was brought dead at 7 pm and prima-facie cause of death is firearm injury."
"In the incident report—based on FIR No 89/2016—it has been mentioned that Shabir Ahmad is known to have suffered injuries and then had been taken to JVC SKIMS Medical College, Bemina where he succumbed to injuries which position at this stage (sic), is repelled by the medical certificate where he is shown to have been brought dead to the hospital at 7 pm," the court said.
"The distance from Tengpora to JVC Hospital Bemina can be covered within less than ten minutes. Apparently allegation of the respondent that the occurrence took place at 6:45 pm at Tengpora appears to be genuine in view of the medical certificate and the admission (Emergency Ticket Issued)," the High Court said.
"Applying the test of "sameness" at this stage, it can be safely said that the two incidents are of different times with involvement of different persons. There is no commonality between the two; the two occurrences emerge from two different circumstances. At this stage there is no question of treating them as one occurrence or treating the second occurrence as part of the first transaction," the court observed.
With regard to the contention of the state counsel that the CJM should have issued direction to the concerned SHO in terms of 156(3) CrPC and not to SSP, the court said: "The argument is totally misplaced because section 551 CrPC provides that police officer superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station."
In response to the contention that in terms of section 156(3) CrPC, a magistrate must have a power and jurisdiction to order investigation and the alleged accused being public servants are entitled to protection under section 197 CrPC, the court said "again this argument is misplaced."
"The wording employed in section 197 CrPC is that the court has not to take cognizance of an offence alleged to have been committed by public servant while acting or purporting to act in discharge of his official duties except with previous sanction. When magistrate exercises power under section 156(3) CrPC, the cognizance is not required to be taken. It must appear from the order that the magistrate has applied the judicial mind," the Court said.
In response to the contention that under section 156(3) CrPC, Magistrate could not order investigation of the case in view of the protection available under section 132 CrPC, the court said the "argument is in wilderness."
"Chapter 1X of the Code deals with unlawful assemblies. Sections 127 to 130 provide how command can be issued for dispersal of mob or any unlawful assembly causing disturbance to the public peace."
"The first occurrence wherein it was mentioned that the violent mob attacked CRPF etc, blocked the road, for their dispersal security forces used tear smoke shells. The protection under section 132 CrPC is available to the public servant in the course of those events," it observed.
The second occurrence, the court observed, is not connected with dispersal of the mob or a part of that action as noted above. "Allegedly while entering into the house, the smashing of windowpanes, beating woman, killing her son, by no stretch of imagination, at this stage, can be said to be within the ambit of Chapter 1X of the Code of Criminal Procedure".
"In terms of Section 154 CrPC whenever a report is lodged for commission of cognizable offence, it is the duty of the police officer to register the FIR. Second FIR is not permissible to be registered by the police officer in respect of same offence or incident forming part of the same transition so as to advance the built safeguard—that is to avoid double jeopardy to ensure fair investigation and to avoid abuse of power by concerned investigating agency," the Court said.