‘97 ‘disappearance’ of father-son duo

Srinagar: Jammu and Kashmir High Court has upheld its orders regarding monitoring of investigation by Chief Judicial Magistrate into ‘custodial disappearance’ of father-son duo in central Kashmir’s Budgam district and Rs 20 lakh compensation to the victim family.
A single bench of the court had ordered CJM Budgam to monitor the police investigation into the ‘custodial disappearance’ of Mohammad Yahya Khan and his father Mohammad Shaban Khan from their residence at Nassalpora area of the district allegedly by army on the intervening night of 16 and 17 April 1997.
Besides, it has directed the  government to pay Rs 20 lakh compensation to legal heirs comprising four daughters and two sons of Mohammad Shaban Khan.
Rejecting the twin appeals filed by army and the state government, a division bench of the court headed by Justice Hasnain Massodi said that they were “devoid of any merit.”
While army had challenged the monitoring of the investigation by the CJM, state filed the appeal regarding compensation, claiming that it had no role in the matter and were not responsible for the arrest of the duo.
The Case
As per the family, Mohammad Yahya and Mohammad Shaban Khan were arrested by Commandant 20 army Grenadiers on 16th April 1997. Nothing has been ever since heard about their whereabouts with their relations suspecting that they were killed in custody.
Subsequently they approached the High court with a writ petition (OWP No. 557/2002) and had sought directions to SHO concerned to registered a first information report and investigate the matter.
The plea was followed by one more petition (OWP N0. 560/2002) seeking further direction to the respondents to pay compensation of Rs 20 lakhs.
The court disposed of the petitions with a direction to concerned SHO to register FIR and investigate the matter in accordance with law and regarding the compensation, the court observed it had to wait the outcome of the enquiry conducted by the Sessions Judge Budgam.
The Session Judge concluded the enquiry, prima facie finding that family proved that duo was arrested by 20 Grenadiers of army in the night intervening 16 and 17 April 1997 and their whereabouts were not know from the date of their arrest.
In compliance to the directions, a case (FIR no 26/05) was registered under section 364, 302 RPC at Police Station Budgam.
However, the family said, neither the investigation was taken up nor any compensation was paid to them.
They once again approached the high court with the petition (OWP no.521/2005), reiterating their compliant and prayed for Rs 50 lakh compensation and providing job to the sons of Mohammad Shaban Khan.
The court on going through the pleadings and record available on the file arrived at the conclusion that the duo was arrested by Commandant 20 Grenadiers and observed that army had neither explained the reason for their arrest and nor disclosed their whereabouts.
The court besides directing CJM to monitor the investigation, asked the state to pay compensation on account of the “custodial disappearance” from Security Related Expenditure (SRE) kept at its disposal by Government of India.
Subsequently Army and state filed letters patent appeals (LPAs) challenging the judgment.
The army’s challenge, as per Assistant Solicitor General of India, was restricted to the direction pertaining to CJM-monitoring of the case with the arguments that it was not open court to pass the order as respondents had not sought it.
However, the division bench said that the argument was bereft of any merit, observing that the respondents (family) highlighted that the investigation (in the FIR) was unnecessarily delayed and had sought “any relief, order or direction which the court may deem fit appropriate.”
The government had questioned the judgment on the ground that state and its functionaries had no role in the matter and were not responsible for the arrest of duo.
The government had said that it has discharged its constitutional obligation by registering FIR and were ready to consider the claim for grant of ex-gratia relief.
“All the grounds set out in the appeal to question the writ court order are devoid of any substance. The state and its officers have not been held responsible to pay Rs 20 lakh as compensation to respondents. The writ court has fixed liability on UOI and its officers and asked state of J&K the compensation from SRE fund placed at the disposal by UOI. The (state of J&K) have not to pay compensation out of its own resources,” the division bench, also comprising Justice Dhiraj Singh Thakur said and dismissed the appeals.
Advocate Iqbal dar represented the victim family.