STRUCTURES OF VIOLENCE

341| Structures of Violence
On 23 December 1996, police investigations in the
case led to the ling of a chargesheet against SPO
Mohammad Ashraf, Abdul Sattar and Tariq Hussain
before the Chief Judicial Magistrate [CJM], Doda. On
23 December 1996, the case was committed to the
Sessions Court, Bhaderwah. On 1 July 1998 charges
were framed by the Sessions Court, Bhaderwah
against SPO Mohammad Ashraf, Abdul Sattar and
Tariq Hussain. Abdul Sattar and Tariq Hussain were
proceeded with u/s 512 [Record of evidence in
absence of accused] Criminal Procedure Code, 1989
[CrPC] as they were absconding. On 8 November
1999, the Sessions Court, Bhaderwah, acquitted
SPO Mohammad Ashraf, Abdul Sattar and Tariq
Hussain claiming that the witnesses in the case
turned hostile.
On 14 August 2011, the Indian Express reported the
case and for the rst time indicated the involvement
of DGP Kuldeep Khoda in the crime, based on the
61
Crime Branch progress report of 16 January 1998.
Following the disclosure of the details of the Crime
Branch progress report of 16 January 1998, Nazira
[widow of Fazal Hussain Dar] and Shaheena [widow
of Mohammad Hussain Lone] led a petition before
the High Court [Original Writ Petition (OWP) no.
1258/2011], seeking re-opening of the case and fresh
investigations by the CBI. Further, it was stated that
while the subject matter of the petition comes under
the jurisdiction of the Jammu wing of the High Court,
the case may be heard by the Srinagar wing, as
lawyers in Jammu were reluctant to take up this case
of human rights violations by higher ofcials. Further,
high fees were demanded which the petitioners were
unable to pay. Finally, the petitioners came in contact
with the Association of Parents of Disappeared
Persons [APDP], which agreed to assist with the
case. The matter was thereby heard by the Srinagar
wing of the High Court. The following is a summary of
the proceedings to date:
- On 23 September 2011, Justice Hasnain
Masoodi of the High Court of Jammu and Kashmir
invited Mohammad Ishaq Qadri, Advocate
General to “assist” in the matter. No notices were
issued.
- On 30 September 2011, the Advocate
General was not present. A. M. Magray,
Additional Advocate General told the court that
the Advocate General was unaware of the
previous order of the court.
- On the following date, the Advocate General
appeared in court and stated that on the following
date the full record of the case, including the
proceedings at the NHRC and the entire Crime
Branch record would be provided.
- For six months the Crime Branch records
were not produced but on 16 April 2012, a transfer
petition [7/2011] led by SPO Mohammad Ashraf
and was admitted and the case was shifted to
Jammu.
- On 20 April 2012, the matter was listed but the
concerned advocate was unable to travel to
Jammu due to the short notice provided. An
adjournment was sought through the son of Fazal
Hussain Dar.
- On 25 May 2012, the date on which the matter
was listed, the case was not taken up. On the
same day, the Advocate General placed written
objections to the petition on record.
- On 29 May 2012, without a copy of the written
objections being provided to the petitioners, nor
they being given an opportunity of being heard,
the petition was dismissed. As Justice Masoodi
was not in Jammu on 29 May 2012, the decision
was read out in court by the then acting Chief
Justice, Virender Singh.
The case is now being referred to the Supreme Court.
On 19 April 2012, the son of Fazal Hussain Dar
approached the State Human Rights Commission
[SHRC] seeking investigations by the SHRC into the
matter.
On 13 August 2012, the advocate for the complainant
had sought an opportunity to advance further
arguments on 22 August 2012. While this request was
granted, no hearing was held on 22 August 2012.
Instead of providing notice for the subsequent hearing
on 12 September 2012, the SHRC chose to dismiss
the case.
As per publicly available information, alleged
perpetrator Kuldeep Khoda was awarded the
Presidents Medal for Distinguished Service in 1999,
the Director General of Police's Commendation
Medal for 2001 and the Sher-e-Kashmir Medal for
Meritorious Service in 2004. Earlier, he had received
the Police Medal for Meritorious Service in 1993.
The manner in which the petition/complaint before the
High Court and SHRC were dismissed is unfortunate
and requires to be closely analysed.
Justice Hasnain Masoodi, the High Court judge
hearing the case, appears to have acted in much
haste and thereby denied the petitioners a fair
hearing. The entire record of proceedings before the
High Court is an indictment of the judiciary in the
instant case. As the matter will be placed before the
Supreme Court, a limited analysis of the judgment will
be carried out here.
First, Justice Masoodi chose to invite the Advocate
General to “assist” the bench instead of issuing
notices, observing that this was a sensitive case.
Second, rather than provide assistance, the Advocate
General did not initially appear before the Bench and
subsequently despite agreeing to submit the
complete Crime Branch record in the case, did not do
61 Indian Express, http://www.indianexpress.com/news/civilians-killed-15yr-report-back-to-haunt-j&k-dgp/831717/0, 14 August 2011.