STRUCTURES OF VIOLENCE

256 | Structures of Violence
The 22 May 2012 communication from the Jammu
and Kashmir Police stated that the case had been
chargesheeted. By communication dated 22 April
2014 from the Jammu and Kashmir Police, a copy of
the chargesheet without annexures was provided.
The State Human Rights Commission [SHRC] was
also approached by the family of the victim, and on 30
December 2004 the SHRC recommended ex-gratia
government relief of Rs. 1,00,000 to the next of kin of
the deceased and compassionate employment under
SRO-43 [Statutory Rules and Orders] .
Further, the family of the victim led a petition before
the High Court of Jammu and Kashmir [Original Writ
Petition (OWP) 402/2005] for action on the
recommendations of the SHRC. The nal order of the
High Court was delivered on 17 April 2006 with an
“observation” that the recommendations of the SHRC
may be implemented.
A charge sheet was split against Captain Atul Sharma,
being from the army, and against the other two alleged
perpetrators, being non-army personnel. The charge
sheet was produced before the Sessions Judge,
Baramulla on 20 December 2003.The Sessions
Judge, Baramulla, on 9 October 2004, framed
charges against Mohammad Yousuf Mir and Manzoor
Ahmad Mir.
The family of the victim led another petition before
the High Court [OWP 380/2006]. This petition was
led against a 31 August 2005 order of the Sub-
Judge, Judicial Magistrate, Baramulla which stayed
proceedings on the charge sheet against Captain Atul
Sharma and stated that “no proceedings can take
place against the accused” till necessary prosecution
sanction is obtained [although the petition itself is
wider and refers to issues relating to investigations as
well]. Therefore, no cognizance was taken of the
charge sheet. The High Court, on 21 April 2007 found
complete non-application of mind with regard to this
order and stated that the Magistrate “should not have
acted on the application of the Army, as the Army was
not a party before the court at all”. The order was
therefore quashed. But, mistakenly, the High Court,
while clearly referring to the 31 August 2005 order,
ordered that a 9 October 2004 order be quashed. A
review petition was led against this order.
Information on the petition numbers was sought
through the Jammu and Kashmir Right to Information
Act, 2009 [RTI] on 16 February 2012. Information was
provided.
The Ministry of Defence, in its afdavit before the High
Court in 2009 on sanctions for prosecution, stated in
relation to this case that sanction had been declined in
February 2009. The Ministry of Defence, in response
to an RTI on 10 January 2012 on sanctions for
prosecution, stated in relation to this case that
sanction had been declined on 23 February 2009.
Further, that the allegation was motivated by vested
interests to malign the image of security forces.
Neither any operation was carried by any unit in the
area nor any person was arrested as alleged.
The family of the victim led a petition before the
High Court [OWP 1091/2011] and challenged the
101
denial of sanction . The Union of India and Captain
Atul Sharma denied that they had any role to play in
the incident.
The SHRC in its order of 30 December 2004 found in
favour of the victim's family and conrmed the
allegations made. This conrmation was based on the
charge sheets led against the accused, and a report
received from the Inspector General of Police [IGP],
Kashmir dated 16 July 2004. The IGP's report, based
in turn on a report by the Senior Superintendent of
Police [SSP] Baramulla, states that during the course
of investigation the army authorities were requested
several times to cooperate with the investigative
agency but did not. The report states that “as per
evidence collected a case was prima-facie
established against Captain Atul Sharma of 22 RR
and others”. The report also states that “in view of the
circumstantial evidence the issue is suspicious as the
person has been eliminated and also the corpse has
been destroyed as the same could not be recovered”.
Also of value is a reference in a letter dated 17
December 2003 from the police authorities in
Baramulla to the Deputy Commissioner, Baramulla
that the victim was not found to be involved in any
subversive activities. But, the family of the victim state
that they are yet to receive any benets
recommended by the SHRC.
Therefore, it would appear to be unfortunate that in a
case where the police authorities, and the SHRC,
have found in favour of the victim and indicted the
alleged perpetrators, the Ministry of Defence has
denied sanction for prosecution of the main accused,
Captain Atul Sharma. Further, it is noteworthy that it
took the Jammu and Kashmir Police, Government of
Jammu and Kashmir and Ministry of Defence six
years to investigate and process the case for
acquiring sanction for prosecution under AFSPA
which apparently helped the perpetrators in evading
justice. Further, the available documents do not
suggest that even a Court-Martial was conducted in
this case by the army.
The only discernible reason for the denial of
sanction appears to be that there was no operation
carried out by the concerned unit and that the victim
was not arrested. It is difcult to understand how the
Ministry of Defence reached this conclusion as the
material before it, presumably the chargesheets
prepared by the police, indict the alleged
perpetrators. Further, the family of the victim state
that they have not been provided the benets
ordered by the SHRC. Also, the family state that
Mohammad Yousuf Mir and Manzoor Ahmad Mir
have received bail. Therefore, despite an early
indictment of all three accused persons, two are
released on bail, with no indication of the trial
reaching completion, and sanction has been
declined for prosecution of Captain Atul Sharma.
Further, over the last six years the State has failed
to produce the results of the DNA tests on the body
exhumed.
101 Information on the petition number was sought through RTI on 2 July 2012. No information was provided. Information on this petition
was sought again on 4 April 2014.