STRUCTURES OF VIOLENCE

325| Structures of Violence
victim states that this afdavit, not made before a
magistrate, was in fact done under coercion by the
army. Based on a lack of representation on two
dates, the petition was dismissed.
The family of the victim approached the State Human
Rights Commission [SHRC] on 15 July 2003. On 26
February 2005, the Inspector General of Police [IGP],
Kashmir Zone, Srinagar, submitted before the SHRC
that the body of the victim was brought to the Boniyar
Police Station on 15 May 1995 by Major P. S. Lamba,
Adjutant of the 28 RR. Further, that the investigation
under FIR no. 42/1995 conrmed that the victim was
killed in custody. A chargesheet had been prepared
against the alleged perpetrators. The FIR by the army,
no. 32/1995 was closed as not admitted. The SHRC
issued its nal decision on 9 November 2005 and
concluded as per the investigations carried out that
this was a case of custodial killing. Rs. 3,00,000 exgratia
government relief and compassionate
employment under SRO-43 [Statutory Rules and
Orders], subject to eligibility, were ordered.
Based on the non-implementation of the SHRC
recommendations, a petition [Original Writ Petition
50
(OWP) 725/2007] was led before the High Court .
On 15 December 2007 the High Court ordered that
appropriate orders be passed based on the SHRC
recommendations.
The family of the victim received Rs. 1,00,000 but no
compassionate employment under SRO-43. In
response to a RTI on Home Department empowered
committee on SHRC recommendations, the Home
Department by communication dated 24 March 2014
provided information on other cases, including the
rd
instant one. It was taken up in the 3 meeting on 21
April 2009. The recommendations were accepted
“under rules”. This would explain why only Rs.
1,00,000 was paid, but the compassionate
employment should have also been granted.
The Ministry of Defence, in its afdavit before the High
Court in 2009 on sanctions for prosecution under the
Armed Forces (Jammu and Kashmir) Special Powers
Act, 1990 [AFSPA], stated in relation to this case that
sanction was declined vide letter dated 12 March
2009.
The Government of Jammu and Kashmir, in response
to an RTI on sanctions for prosecutions, stated on 6
September 2011 in relation to this case that sanction
was declined.
As a chargesheet was produced against the alleged
perpetrators and sanction for prosecution under
AFSPA was sought a prima facie indictment of the
alleged perpetrators is made out. The reasons given
for denial of sanction are a reiteration that the victim
was a militant and the baseless “It is likely that the
case has been raised under pressure to malign the
image of the Security Forces for obtaining
compensation”.
The Jammu and Kashmir Police communication of 26
June 2004 lays down the position of the police quite
clearly. This communication, is in fact an order for reinvestigation
by Senior Superintendent of Police
[SSP], Baramulla, Munir Khan. The order states that
both FIRs were perused at the “ZPHQ” level and
certain observations were made. The victim was a
surrendered militant and had no further involvement
in militancy. The Numberdar was a reliable witness
who deposed that Major Chinapa told him to produce
the victim in the army camp at Heewan. Major
Chinapa assured him that the victim would be
released within two or three days. The order states
that the evidence of the Numberdar is “evidence
which can be relied upon before any forum
(court/commission)”. Further, mere registration of a
counter FIR cannot affect the credibility of the case.
“In the remote area the residents are under the
psychological pressure from the Army especially
during the present turmoil and one could hardly think
of reporting the arrest by the force to the police”. The
order also states that the two FIRs should have been
investigated together and “there has been error of
law/procedure” that this was not done. Further, the
order states that “the identity of army ofcers/ofcials
is established by the Numberdar and the complainant
and more-ever non explanation on the part of the
army regarding injuries on the body of the deceased is
credible evidence to proceed against the culprits”. As
a result of the above observations, re-opening of both
cases was said to have been desired by ZPHQ and
thereby ordered on 26 June 2004. Therefore, the
police, in 2004, and subsequently, until sanction for
prosecution was declined, had found against the army
in this case.
Finally, the non-seriousness of the police in the instant
case can be gauged by the fact that on one hand the
Government of Jammu and Kashmir has applied for
sanction for prosecution under AFSPA based on a
chargesheet being prepared against the alleged
perpetrators, and on the other hand the police have
closed the case by declaring the perpetrators as
untraced, presumably after sanction for prosecution
was declined. This action of the police is
condemnable as the mere denial of sanction should
not change the considered opinion of the police
following their investigations.
Following the denial of sanction from the Ministry of
Defence the police has chosen to close the case
rather than agitating the matter in the court. The
closure of the case as untraced is a cruel conclusion
for the family of the victim who identied the alleged
perpetrators and whose allegations were supported
by the police investigations.
Further, the available documents do not suggest that
even a Court-Martial was conducted in this case by
the army.
50 Information on the petition number was sought through RTI on 2 July 2012. Information was provided.