STRUCTURES OF VIOLENCE

200 | Structures of Violence
on 15 July 1995 and he was part of the raid.
The witness then described the ring that
took place at Kani Mazar and the escape of
the victim. Attempts were made to locate the
victim. This was around 9:00 pm to 10:30 pm.
On cross-examination, the witness stated
that the victim was taken to the police, but not
by him personally, to seek the remand of the
victim. Further, he stated that the
interrogation of the victim was carried out by
the Head of the General Staff, R.S. Khoswa.
He also stated that he never allowed the
family of the victim to meet with the victim in
October 1995 and stated that the matter was
within the “competence of Commandant”.
- Witnesses Raj Kumar, Rajender Singh,
Nirmal Singh and four other members of the
raid conducted testied to the incident of 15
July 1995 in a manner similar to witness
Sardar Rai Singh. But, on cross-examination,
witness Nirmal Singh stated that the victim
was never taken to the Magistrate. He also
testied that “the parents and other relatives
of Mushtaq Ahmad Chacha used to come to
the camp for meeting” the victim, but he did
not provide further details except to deny
knowledge of any visits in October 1995.
Witness Rajender Singh testied that this
incident took place on 19 July 1995 [which
may be a typographical error and would need
to be ascertained by checking the original
enquiry records].
- W i t n e s s B . B . V y a s , t h e D e p u t y
Commissioner Srinagar, and the person who
issued the PSA order of 27 September 1995
testied that he had “presumed” that the
victim was in police custody when he issued
this order based on the police dossier before
him, which would strongly suggest that the
victim remained in custody at the date of the
order.
An interesting feature of this case is the manner in
which the State, and Jammu and Kashmir Police, and
the BSF have taken opposing positions on the issue to
deny any blame in the incident. The original position of
the State and police was that the victim was in their
custody till 15 July 1995, but subsequently, at the
closing of the enquiry they argued that victim was
never in their custody, but instead in the custody of the
BSF. The BSF claims that the victim escaped from
their custody on 15 July 1995, and using the order of
the District Magistrate of 27 September 1995,
suggests that at some point he returned to the custody
of the police.
The enquiry, based on the above evidence, concluded
that:
st
- The victim was arrested by the 41 Battalion
BSF on 9 July 1995 at Ali Kadal
- The version of the BSF of the events of 15
July 1995 “apparently seems to be a
fabricated” as no FIR was immediately
lodged. Further, while the BSF claims that
searches for the victim were carried on
subsequent days, the evidence before the
enquiry does not suggest the same. Finally,
witnesses have testied that there was no
ring in the area at the alleged time period of
the incident.
- The conduct of the police is highly
questionable, especially in light of the District
Magistrate order of 27 September 1995 that
suggests the victim was in police custody.
“The respondent no.3 has conducted himself
in the present case in utter violation of the law
on the subject. He seems to be mainly
r e s p o n s i b l e f o r t h e c u s t o d i a l
disappearance…” The respondent no. 3 was
the SP, CID, CIK, Srinagar.
- The Deputy Commissioner, Srinagar “also
seems to have acted mechanically” in
passing the PSA order.
The observations made in the nal decision of the
High Court may now be considered. The High Court
observed that “Obviously the stand of the BSF and
State Police is self destructive to reveal custodial
disappearance of Mushtaq Ahmed Chacha in
circumstances not admittedly explained or brought to
light. Their conduct and actions have violated law as
per evidence recorded, fact-situation and
circumstances of the case. The conclusions of the
enquiry ofcer cannot be said to be unreasonable or
not based on material/evidence. The attempt on the
part of the State Police and the BSF to cover up or
hush the matter is writ large on record. The only
conclusion to be drawn is that Mushtaq Ahmed
Chacha has disappeared while in physical custody of
the respondent No.3, the main and chief culprit in the
matter.”
An analysis of the entirety of the evidence clearly
points to the following conclusions:
st
- The victim was arrested by the 41 Battalion
BSF on 9 July 1995 and taken to the Karan
Nagar Camp
- Based on the evidence of Ali Mohammad
Magloo, A.S. Bali and Nirmal Singh, the victim
was never brought to the police station nor to
a Magistrate
- There was no ring at the Kani Mazar area on
15 July 1995 and the victim did not escape on
that date. This is based on the orders of the
District Magistrate, and the evidence of the
family of the victim that they met with him in
October 1995.
st
- The Commandant of the 41 Battalion BSF at
Karan Nagar, Dinesh Kotwal, Sardar Rai
Singh, Deputy Commandant and the person
apparently responsible for the interrogation of
the victim, R.S. Khoswa, Head, General Staff,
subject to further investigation/information,
would appear to be most answerable for the