Grants him bail in one FIR, wonders ‘how much and what investigation is going on in 15 out of 27 cases by unknown SIT against him’; ‘situations like Abu Ghraib, Guantanamo cannot be tolerated’
Srinagar: A Budgam court has come down heavily on the police for continuous detention of Muslim League Chairman and Hurriyat Conference (G) leader Masrat Alam Bhat, saying no court could compromise on any illegal act even if done by the state.
“If the accused is anti-national and detrimental to the society and public at large, let the state discharge its duty in bringing the guilty to book so that (he is) punished suitably as per the mandate of law. However, despite the fact that the state alleges the accused to be anti-national, the right of the accused, as guaranteed by the constitution, principles of natural justice, including “audi alteram partem” (literally, ‘listen to the other side’, or ‘no one should be condemned unheard’) cannot be denied to the accused indefinitely,” Chief Judicial Magistrate Masarat Roohi said while granting bail to Alam in an FIR (92/2015) registered in police station Budgam against him last year following the arrival, from Delhi, of Hurriyat Conference (G) chief Syed Ali Geelani on 15 April 2015 under RPC Sections of 120-B (criminal conspiracy), 121 (waging war against the Government of India), 147 (rioting), 341 (causing injury), 336 (attacking government employee), 427 (mischief) read with 13 Unlawful Activities (Prevention) Act.
According to police, 27 different cases have been registered against the 44-year-old leader since 1995; Kashmir Valley (25 cases) and Jammu (2 cases). However, investigation has been completed in only 12 cases despite claims by the police that special investigation teams at zonal level led by respective IGPs have been constituted to ‘speed up’ the investigation in these FIRs.
“In toto, 27 cases have been registered and if 90 days are given in each case, the aggregate period of detention of every FIR is to be construed as separate FIR with a maximum limit of 90 days detention in each FIR, it would amount to 6 years and 7 months before the accused sees the light of the day from the dungeons,” the court said.
It may be further noted, the court said, that 15 cases are still under investigation and “one wonders how much investigation and what all investigation is going on in all these 15 cases by unknown Special Investigation Team though the maximum time period provided under law is 90 days before charge sheet could be filed (sic).”
Six of the cases pending investigation pertain to 1999 (FIR 284/99 of P/S Sadder), 2006 (FIR 12/2006 P/S Rajbagh) and (34/2006 P/S Nigeen), 2007 (FIR 70/2007 P/s Safakadal) and (FIR 1/2007 of P/S City police) and 2008 (FIR 99/2008 P/S Baramulla).
“If such a trend is sanctioned by the courts and the law interpreted in the manner the way chief prosecution officer of the state seeks the same to be interpreted, the might of state with more than 200 police stations throughout the state with every police station registering an FIR, granting 90 days of exhaust remand in each FIR, before the accused reaches the Court of law trial, he would have already spent 49 years and 3 months in jail, thus negating the whole presumption of innocence of the accused as guaranteed to him by the law (sic),” the court said.
Such acts of the state, the court added, not only weaken the criminal justice system but also create alienation between the state and its population where it become ‘us’ and ‘them’ and an individual no longer feels himself to be part of the state.
“Perhaps the opening word in the preamble of the constitution is not ‘us’ and ‘them’ but “WE The People Of India’. And it is this “WE” which forms both ‘us’ and ‘we’ with basic democratic ethos and guaranteeing universal human rights in the form of fundamental rights, which are inherent, and could not be abrogated even in the state of emergency,” the court said, adding, “So long as this part of the country is part of Indian union, on which this Court has no doubt, situations like Abu Ghraib and Guantanamo cannot be tolerated at least in cases which are raised in the courts against Indian citizens.”
The court said Alam has not only been detained for 90 days, but “many 90 days” commencing from 15 April 2015, and is in continuous detention ever since without trial despite a high powered SIT investigating the same, which is not likely to conclude within a reasonable time.
“The fact remains that the lodgment of the accused (Alam) in Baramulla Sub-Jail is sufficient enough to substantiate that out of 27 FIRS only two are under investigation in District Baramulla. The custody of the accused being requisitioned by police station Shaheedgunj, though they do not require him for custodial interrogation in police remand but seek his detention in judicial custody, is enough to hold that the accused is not required by the investigation but needs to be incarcerated in judicial custody, extra judicially . This kind of custody in the opinion of this Court amounts to extra judicial custody which cannot be sanctioned by any legal means,” the court said, and granted bail to Alam in FIR (No. 92/2015 of police station Budgam) on certain conditions; that he shall furnish two sureties of Rs two lakh each out of which one shall be a local resident of District Budgam before the Superintendent of Sub-Jail Baramulla . The court directed that Alam shall not hamper or tamper with the prosecution evidence, or leave the state without seeking prior permission of the court.