STRUCTURES OF VIOLENCE

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301| Structures of Violence Further, the Government of Jammu and Kashmir ordered an enquiry by a Magistrate and the report was submitted on 13 November 1993. By communication dated 16 May 2014 from the Jammu and Kashmir Police the following is stated: “The investigation of these cases stands closed as challaned. The CD les along with relevant documents and evidence both oral and documentary stand submitted to concerned quarters for accord of sanction to prosecute or otherwise, the case is under investigation and as such, it comes under the purview of section 6(b) of Jammu and Kashmir Right to Information Act, 2009”. By communication dated 18 December 2014, from the Jammu and Kashmir Police, it was stated that the letter of Sub-Divisional Police Ofcer, Bijbehara, where under the CD le had been sent for accord of sanction, was enclosed, but in fact no documents were provided. Relatives of the 31 victims listed above led a petition before the High Court of Jammu and Kashmir [Original Writ Petition (OWP) 149/1996] seeking compensation of Rs. 50,00,000 each. The Government of Jammu and Kashmir and the Jammu and Kashmir Police made their submissions before the High Court. First, they accepted that the procession, while “highly sentimental”, was peaceful. Second that the ring on the procession was by a BSF patrolling party. Third, that the investigation in the case was nalized and sanction for prosecution under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 [AFSPA] had been sought. Fourth, that the Government of Jammu and Kashmir and Jammu and Kashmir Police cannot be held responsible for the acts, if established, of the BSF and that Rs. 1,00,000 ex-gratia government relief had already been paid to the families of the deceased. The Union of India [through the Ministry of Home Affairs and specically by the Deputy Inspector General (DIG), BSF, Rajouri] made the following submissions: - On 22 October 1993, Deputy Commandant J.K. Rodala, along with eleven others went to Bijbehara town. - In anticipation of a BSF convoy that was to pass through the area, and seeing the large crowds gathered, Deputy Commandant J.K. Rodala asked SI Malhar Singh to tell the crowd to disperse. At this point, 2-3 persons in the crowd pounced on “CT Sajesh MV”. Then, there was gunre from an AK-47 and SI Malhar Singh was injured on his right shoulder. Some members of the crowd then tried to grab his weapon. At this point, a “few rounds” were red by the troops in self-defence. - The ndings of the enquiry magistrate are incorrect. - The General Security Force Court acquitted all the alleged perpetrators. In addition, other BSF personnel also led their afdavits before the High Court and stated that “actions taken by them were in the ofcial discharge of their duties and had due sanction of law”. On 10 September 2007 the High Court delivered its nal decision and granted Rs. 4,00,000 each to the petitioners. The Government of Jammu and Kashmir and Jammu and Kashmir Police led a Letter Patent Appeal [LPA no. 69/2009] against the 10 September 27 2007 order . Further, it is reported that the National Human Rights Commission [NHRC] led a petition before the Supreme Court seeking that that the ndings of the General Security Force Court be made public. 28 This petition was subsequently withdrawn . As a copy of the ndings of the General Security Force Court is not on record, the only documents that may be considered for the purpose of analysis are the Magisterial enquiry report of 13 November 1993 and the nal order of the High Court of 10 September 2007. The Magisterial enquiry report submitted on 13 November 1993 clearly indicts the security forces in the killing at Bijbehara. The conclusions of the report are as follows: - “On 22 October 1993 a procession of 2000 to 3000 people was taken from Jamia Masjid Bijbehara against Hazratbal siege. The procession was entirely peaceful and un-armed. There were no armed militants amongst the demonstrators. - It has been established beyond any shadow of doubt that ring upon the procession was absolutely un-provoked and the claim made by the security forces that they were forced to retaliate the ring of militants for self defence is baseless and concocted. - The enquiry conducted falsies the assertion of the BSF personnel that total 51 bullets were red by them. Actually, besides the cold blooded killing of 31 persons some 73 persons were injured. - There were no casualities from the BSF side and which conclusively establishes the fact that there was no ring from the side of the processionists and there was no militant or armed person in the crowd. - The security forces personnel have committed offence out of vengeance and their barbarous act is deliberate and well planned” The report continues to state that “the role of Deputy Commandant Shri J.K. Rodala in the whole 27 Information on the petition numbers was sought through RTI on 16 February 2012. Information was provided. Further information was sought through RTI dated 15 July 2015. 28 Times of India, http://articles.timesondia.indiatimes.com/2002-07-06/india/27302159_1_nhrc-national-human-rights-commission-case, 6 July 2002.
302 | Structures of Violence incident is equally culpable because of tacit approval given by him to the indiscriminate and un-provoked ring.” The report then recommends the immediate dismissal of alleged perpetrators 2 to 12 listed above and the initiation of criminal proceedings against them and refers to the alleged perpetrators as “malignant and sick minded individuals”. The report therefore clearly indicts the BSF and alleged 29 perpetrators 2 to 12 in the Bijbehara incident . The enquiry report while also indicting Deputy Commandant J.K. Rodala does not refer to him ring into the air, the signal that appears to have begun the ring. Nonetheless, the enquiry report serves as a clear indictment against him as well due to his tacit approval and considers him equally culpable as the others. While the BSF, before the High Court, did not accept the ndings of the Magisterial enquiry report, the High Court in its 10 September 2007 order did afrm the ndings. The following are the relevant conclusions of the High Court: - The plea taken by the DIG BSF, of there being a provocation for the ring, is contradicted by the afdavits of the BSF personnel. - Though the DIG BSF states that SI Malhar Singh received a bullet injury no medical certicate indicating the same was placed on record. - There is sufcient material on the record to support the version of events put forward by the petitioners. Particularly, the enquiry report of 13 November 1993. Based upon the above, the High Court concluded that “these facts sufciently show that the BSF personnel on duty opened re on the mob without any provocation or cause. The procession was entirely peaceful and unarmed and there is no evidence of the presence of any armed militants in the mob. Thus there was no justication to kill these persons who were closely related to the present petitioners.” Based on its conclusions the High Court ordered compensations of Rs. 4,00,000 to each of the petitioners in addition to the ex-gratia government relief already granted to them. The High Court and the enquiry report clearly indict the BSF. As the afdavits of the BSF personnel are not presently with the IPTK it is unclear how they contradict with the position of the DIG BSF, but the indictment of the High Court remains unequivocal. While submissions before the High Court suggest that the case against the BSF personnel has been sent for sanction, the Government of Jammu and Kashmir, in response to information sought through the Jammu and Kashmir Right to Information Act, 2009 [RTI] on sanctions for prosecution under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 [AFSPA], on 6 September 2011 does not refer to this case. The IPTK sought information on 10 January 2012 on all inquiries and Court-Martials conducted by the BSF between 1990 and 2011 in Jammu and Kashmir but no information was provided. Further, the IPTK sought information on 10 January 2012 on all cases of sanctions for prosecution under AFSPA relating to the Ministry of Home Affairs between 1990 and 2011 in Jammu and Kashmir but no information was provided. Therefore, the present status of sanction is not known. Therefore, it would appear that investigations in the case had in fact not been carried out or completed. It needs to be ascertained on whose directions the police have not carried out or completed the investigations in a case where the Magisterial enquiry and the High Court have indicted the alleged perpetrators. The Magisterial enquiry now appears to have been rendered redundant by the inaction of the Government. Case No. 32 Victim Details Mushtaq Ahmad Bhat [Abduction and Extra-Judicial Killing (Custodial Killing)] Son of: Aziz Mohammad Bhat Resident of: Honjala Tehsil, Kishtwar, Doda District Alleged Perpetrators 1. Captain T.K. Chopra, 15 PBOR [Accounts ofce], 10 Jammu and Kashmir Ries, Army 2. Captain Pushpinder, 15 PBOR [Accounts ofce], 10 Jammu and Kashmir Ries, Army Case Information The victim was killed in custody on 3 November 1993. First Information Report [FIR] no.181/1993 u/s 364 [Kidnapping/Abducting to murder], 302 [Murder], 34 [Common intention] Ranbir Penal Code, 1989 [RPC] 30 was led at the Kishtwar Police Station . The FIR led by Abdul Rashid Bhat stated that an unidentied dead body was found with bullet injuries in the face and head, and torture marks, near Chermali, Pooncha, Kishtwar. The 24 November 2011 communication from the Jammu and Kashmir Police states that the investigation was with the Crime Branch. By communication dated 29 April 2014 from the Jammu and Kashmir Police information was 29 The report does not fully name “K.Singh, L.N.K., no. 84744051” but does refer to his designation, his rst initial “K” and his number. 30 Information on this FIR was sought through the Jammu and Kashmir Right to Information Act, 2009 [RTI] on 7 October 2011.By communication dated 24 November 2011 from the Jammu and Kashmir Police a copy of the FIR was provided. Further information sought through RTI on 15 October 2013. By communication dated 24 November 2013 from the Jammu and Kashmir Police a copy of the FIR was provided. Further information sought through RTI dated 14 November 2014.
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STRUCTURES OF VIOLENCE THE INDIAN S
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Testimony 31: Nazir Ahmad Zarger, v
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