DGP’s report notwithstanding, HC seeks status on CoI into 2010 killings

Srinagar: Notwithstanding Director General of Police’s report that it would be “futile” to revive Commission of Inquiry (CoI) into the 2010 killings in the Kashmir Valley, the J&K High Court has directed the government to file status report regarding the CoI which is defunct at the moment.
“Direction No.5 of the order dated (June 6, 2013) has not been complied with,” a division bench of Justices Mohammad Yaqoob Mir and Hasnain Massodi said after hearing senior advocate Z A Shah in a Public Interest Litigation filed in the aftermath of the 2010 killings.
Confronted with it, state’s Additional Advocate General Reyaz Ahmad Khan sought three weeks for filing the compliance report, which was granted by the bench.
On June 6 last year, the division bench had asked state government to explain why the CoI was restricted to only 17 killings—out of more than 120 deaths of unarmed protesters and bystanders at the hands of police and paramilitary CRPF—and why other cases were left out from the purview of the Commission. “If the state government decides to revive the Commission then this question also requires to be answered,” the court had said.
Subsequently in July last year, DGP Ashok Prasad filed a compliance report stating that the CoI stands expired and “no useful purpose would be served by constituting it afresh.”
The top cop of the state had also submitted that the government had earlier ordered a CoI vide notification (SRO no. 255) on June 26, 2010 and subsequently vide notification (SRO no. 283) on July 29, 2010 the government constituted a new commission to probe the killings.
“The Commission appointed (vide notification SRO-283) had a life span of three months from the date of issuance of the notification, which expired on October 29, 2010,” the DGP had said in the status report.
“The tenure of the (CoI) has not been extended till date (July 2013) and hence the (CoI) stands expired, and under the existing laws, it was not found feasible to restore this already constituted Commission to start working from the stage of work left over earlier,” Prasad had said.
Consequently, he had said that the government initiated the process for ordering a denovo Commission under the Commission of Inquiries Act 1962.
“The assurances were given from time to time to this court regarding fresh/denovo (CoI). When the proceedings were at the advanced stage and terms of reference were to be framed, the prayer of the petitioners was examined and found to relate to the death of (117) persons shown in the petition except those where the final report consequent to the investigation has already been submitted before the competent court.”
The DGP had further stated that the number of deaths (117) shown by the petitioner during the summer unrest “was not correct and details of the all deaths do not relate to the turbulence period.”
“A perusal of the status of the cases listed would reveal that out of the 78 cases (covering the deaths that had taken place in Kashmir Valley during 2010 agitation), chargesheets/final reports consequent to investigation had already been submitted before the court of jurisdiction in 76 out of 78 cases,” the DGP’s report reads, adding, “In addition the two cases are already before the competent court and are being monitored by the court itself.” The two cases include that of Bilal Ahmad Najar and Noorul Amin Dagga who were killed in Anantnag district of south Kashmir.
“Consequently, it has been found that there were no cases under investigation which fall within the purview of prayer made in the PIL,” the report reads. “Since action has already been completed which fully satisfies the prayer made in the PIL, no cases remain which could be referred to the denovo (CoI) to ‘identify, ascertain and evaluate the circumstances attending the death of these 117 persons between January to December 2010.”
The DGP had also said that constitution of a new commission would ultimately lead to proceedings before court of competent jurisdiction only. “This process has already been completed since the cases are pending before the competent courts,” the DGP had said. “As a result no purpose would appear to be served by constituting a denovo commission at this stage.”
However, senior advocate Z A Shah, representing petitioner JKLF through petitioner advocate Imtiyaz Ahmad Sofi, submitted before the bench that this decision can only be taken by state government and not the DGP.
Rejecting the contention about the prayer raised by the DGP, advocate Shah said that the relief sought in PIL is broad based and it has not been interpreted in right earnest by the police officer.
“When armed forces resort to firing, who takes this decision, at what stage is someone to be fired upon, and what prescribed norms are to be followed? Whose decision is this—armed personnel’s or that of the Magistrate? This all should be evaluated. State cannot resort to firing like that,” Shah stressed referring to prayer in the PIL.
“The decision lies with the Magistrate who should have at least 20-year experience and not yesterday’s appointed 24-hour Magistrate. Law cannot permit arbitrary firing like in 2010 when more than 117 people got killed,” Shah added.
Earlier, the government had informed the court that CoI has come to a halt as Justice (retired) Syed Bashir-ud-Din demitted office of chairman SHRC on June 24, 2011 while Justice (retired) YP Nagrota tendered resignation as member of the Commission with effect from August 21, 2011 “expressing inability to continue its member because of his assuming office as chairman of State Accountability Commission.”
Meanwhile, while considering the matter regarding ex-gratia relief to those killed during the 2010 unrest, the court observed that so far Rs 5 lakh each has been granted in 102 death cases.
“Ex-gratia relief of Rs 5 lakh each has been paid to them (102) whereas regarding remaining 15 cases, decision as yet has not been taken. Those 15 cases also pertain to 2010,” the bench said. “Irrespective of the time limit, as has been assumed to be (June 11 to October 2, 2010), the respondents shall accord consideration to the grant of ex-gratia relief of Rs 5 lakh in accordance with norms in favour of the 15 cases.”
The decision about grant of Rs 5 lakh ex-gratia relief in the 15 cases, court said, shall be taken and compliance report submitted by next date of hearing in the PIL on May 15.