HC stays Kunan-Poshpora mass rape probe as army takes AFPSA cover

Kunan-Poshpora mass rape

Srinagar: The J&K High Court stayed on Thursday police investigation into the infamous 1991 mass rape in twin villages of Kunan and Poshpora in Kupwara district of north Kashmir.
A bench of Justice Tashi Rabstan passed the directions on a petition filed by General Officer Commanding 28 Infantry Division who invoked the Army Act and sought directions to annul June 18, 2013 orders of re-investigation by Judicial Magistrate Kupwara as well as August 8 orders by Sessions Judge Kupwara who had upheld it.
The army had filed the petition despite being a party in a Public Interest Litigation seeking justice to victims of the rape of over 30 women allegedly by personnel of army’s 4 Rajputana Rifles during the night intervening February 22/23, 1991.
“The petitioner is empowered and authorized to examine, enquire and try the persons subject to the Army Act under his control in respect of the allegation attributed on to them while on ‘Active Service’ in the State of J&K,” the GoC said, questioning the legality of the two orders.
“Whether law permits the Magistrate to record evidence and thereafter direct further investigation? Or whether a Magistrate at the time of consideration of final police report, can rely upon the unaccepted findings and observations of SHRC to decide the further course of action? Or whether the findings of the Commission can be treated as evidence,” the GoC said.
The orders of investigation by the Magistrate and subsequent upholding of it by the Session judge followed SHRC’s recommendation in 2011. Besides re-investigation, the Commission had directed payment of Rs two lakh as ex-gratia to victims well as action against then Director Prosecution for closing the case (FIR No. 10) in 1991 as untraced.
On last date of hearing on December 29 last year, SP Kupwara, who heads the Special Investigation Team investigating the allege mass rape, reiterated before the Division Bench, hearing the PIL, that army was not cooperating in its investigation by not furnishing the particulars of 125 officers and the soldiers who conducted the search-and-cordon operation during the night in the twin villages.
The IO on October 29 last year had requested Brigade Commander 68 Mountain Brigade Camp Trehgam, vide a letter, that present place of posting including residential particulars of the 125 officers and the soldiers as per the nominal roll, be communicated to him.
Besides, the Commander was also asked to direct the officer and the soldiers to attend IO’s office at the earliest for questioning in order to conclude the investigation.
On November 14, the investigation officer called on J S Sandhu, GOC 68 Infantry Brigade at Headquarters Zangil to discuss the line of action regarding presence of the officers and the soldiers.
After half an hour meeting, Sandhu, as per IO told him that matter had been already taken up with higher army authorities and assured that the presence of soldiers will be made as soon as their whereabouts were ascertained.
When there was no headway, the IO on November 28, again reminded the Commander to provide the details and present them before him.
Subsequently, the IO requested the High Court to direct the Defence Ministry to cooperate with the investigation.
However, in the latest petition, the GoC has termed the orders by Magistrate and Session Judge calling for Test Identification Parade of alleged accused as “bad in the law.”
“After the delay of 23 years, it was not in accordance with the law laid down by the Supreme Court to conduct the Test Identification Parade,” the GoC argued.
After hearing counsel advocates A P Singh and T R Wani for the army, Justice Rabstan issued notice to State through Superintendent of Police Kupwara and Station House Officer Trehgam and asked them to file response to the petition within two weeks.
“In the meantime, subject to the objections, till date impugned orders shall stay,” the court added.