Srinagar: A court here on Tuesday upheld the August 22, 2013 order by Chief Judicial Magistrate Srinagar on issuance of non-bailable arrest warrants against two policemen in connection with the killing of 12-year-old boy Wamiq Farooq in downtown Srinagar in 2010.
Dismissing the review petition filed the cops, ASI Abdul Khaliq Sofi and SPO Mohammad Akram, the court of 2nd Additional District and Sessions Judge, Parvez Hussain Kachroo, asked the parties to appear before the CJM for further proceedings on March 3.
Wamiq, a 7th standard student, was killed on January 31, 2010 when a teargas shell fired by the police hit him on the head near Gani Memorial Stadium at Rajouri Kadal here.
In its 103-page judgment, the review court has critically analysed and answered a number of queries raised in the plea including whether the sanction as envisaged under section 132 CrPC for launching of the prosecution was necessary against the cops.
“In view of the attending facts and circumstances, the plea raised by (them) that no prosecution could have been launched against them without obtaining sanction under section 132 CrPC is not sustainable,” the court said, upholding the contentions by the family of the slain boy that the cops had not acted in accordance with the law and action by them was not done under the colour of their official duty.
The court also rejected contentions by the cops that the order passed by CJM is an interlocutory in nature.
Regarding their argument that CJM had no authority to issue the process against them because sanction under Section 197 was required from government, the court said, “As the petitioners can be removed from their services not by the government but by the DIG police or SSP concerned, so the protection given under Section 197 CrPC cannot be extended to them.”
On August 22 last year, the CJM had directed Inspector General of Police, Kashmir Zone, to execute the warrants and posted the matter for the attendance of the two accused on September 4.
“Culpable homicide not amounting to the murder as defined under section 299 of RPC, punishable under section 304 (part 2nd) of RPC, is disclosed against ASI Abdul Khaliq Sofi and SPO Mohammad Akram. They are required to stand charge under the provisions of CrPC. Accordingly, process is directed to be issued against the two accused requiring them to attend the court.”
After Wamiq’s death, as the police refused to take cognizance initially, his father Farooq Ahmad filed a complaint before the CJM on February 15, 2010, seeking directions to police to register an FIR against the accused ASI and the SPO for offences under section 302 RPC. The complaint was referred by the court to the IGP who reported back on February 20, 2010 that the matter was already under investigation in FIR 12/2010 under section 307, 148, 149, 336, 353 RPC at Police Station Nowhatta.
According to the CJM, the facts unravelled in the FIR revealed that some “miscreants had tried to set ablaze a police vehicle” amid heavy stone pelting and the police had to resort to smoke shelling. Later on, it was found that one boy Wamiq Farooq received injuries and succumbed to his wounds at SKIMS, Soura here.
Subsequently, the CJM on May 11, 2010 ordered a detailed by Judicial Magistrate (Passenger Tax & Electricity Srinagar). The Magistrate submitted inquiry report on November 26, 2010.
The CJM, however, on February 5, 2011 directed the IGP, Kashmir to constitute Special Investigation Team (SIT) to be headed by an officer not below the rank of SP.
The police challenged the order by filing a revision petition in Principal and Sessions Court and the High Court. However both Sessions as well as High Court upheld the orders by the CJM and SIT was constituted and it submitted report on April 24 this year.
In its report, the SIT, the CJM observed, does not rule out the possible cause of Wamiq’s death due to tear gas shell, apart from other reason being fall from the Gani Memorial Stadium wall.
The CJM also found that there was nothing on record from medical evidence which would completely rule out the possibility of death of the boy due hitting of tear smoke shell.