Jammu & Kashmir and Ladakh High Court: Sanjeev Kumar, J., refused to quash trial against the petitioner who had been facing trial for conspiring against one Sajjad Ahmad Bazaz-detenue which led to the disappearance of the detenue from the custody of the BSF authorities. The Bench, however, allowed the bail application of the petitioner.
The instant quashment petition was filed by the petitioner to challenge order passed by the Additional Sessions Judge, whereby charges under Sections 302, 344, 363 and 120-B read with Section 109 RPC had been framed against the petitioner. The petitioner had also sought quashment of the trial commenced pursuant to the impugned charge-sheet, pending adjudication before the Trial Court and had additionally sought for his enlargement on bail.
Briefly stated facts of the case were that in the year 1991, on mere suspicion of involvement of the petitioner in militancy related activities, the petitioner was arrested by 30th Bn Border Security Force and was kept in illegal captivity for almost two and half years and it was in the year 1993 he was let off by the 30th Bn BSF. During the period of captivity, the petitioner was made to accompany the personnel of BSF under the command of Deputy Commandant, Dilip Singh Rathore, which cordoned off the house of complainant for search operation to look for one Sajjad Ahmad Bazaz, who, on being identified by the petitioner, was arrested by the BSF authorities and taken in custody.
Since the whereabouts of the detenue-Sajjad Ahmad Bazaz could not be known despite efforts and he was last seen with and picked up by BSF personnel, a case was registered against them. The investigation was conducted and the petitioner was also roped in by the aid of Section 120-B RPC. However, in view of the fact that the valley of Kashmir was declared as disturbed area under Section 3 of the Armed Forces (Special Powers) Act, 1958, prosecution against accused Dilip Singh Rathore and other personnel of BSF could only be instituted with the previous sanction of the central government. Noticeably, the Government of India refused to grant sanction for prosecution.
Later on, the petitioner was arrested. The petitioner urged that on 12-12-2019, after a gap of about 14 years since the prosecution, and in the absence of petitioner, charge was framed against him for commission of offences punishable under Section 302, 344, 364, 348, 201 and 120-B RPC. The petitioner claimed that mere accompanying the Deputy Commandant, and other personnel of BSF during the search operation in which detenue Sajjad Ahmad Bazaz was arrested and thereafter he could not be found dead or alive, could not make him liable for his disappearance and suspected killing by the BSF personnel.
Observations and Analysis
Observing that there was some pervious enmity between the petitioner and the detenue with regard to some payment of money and that it was at the instance of the petitioner, who was an informer of the security agencies, the residential house of the detenue was cordoned off and the detenue was picked up on the identification of the petitioner, the Bench opined that the circumstances in which the occurrence had happened do lend support to the argument of respondents that the petitioner had conspired in the matter, which ultimately led to the disappearance of the detenue from the custody of the BSF authorities.
Reliance was placed by the Court on the decision of the Supreme Court in the case of K.R.Purshotham v. State of Kerala, (2005) 12 SCC 631, wherein it had been held that, “in most of the cases it is not possible to prove agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to the conclusion and inference of an agreement between the two or more persons to commit offence.”
Findings and decision
In the backdrop of above, the Bench held that there was sufficient material for proceeding against the petitioner for offences with which he had been charged and it was not the case where the charges were required to be quashed and challan dismissed. For the foregoing reasoning, the Bench refused to interfere with the ongoing trial against the petitioner and dismissed the petition for being devoid of any merit.
On the matter of bail, the Bench stated that undoubtedly the charges against the petitioner were serious but the Court could not lose sight of the fact that the prime accused in the disappearance/killing of the detenue, namely, Dilip Singh Rathore had been let off and held not guilty by the BSF Court. Government of India, too, had declined to grant sanction for his prosecution to the Crime Branch. Hence, noticing that the main culprit, who had allegedly caused disappearance of the detenue, had been let off and was a free man and the petitioner was facing trial, the Bench held that the petitioner, who was a married person and had children to support, need not be kept in incarceration, more so when his presence during trial can be ensured by stringent terms and conditions.
Accordingly, the petitioner was directed to be released from custody subject to furnishing of bail bond in the amount of Rs.1.00 lakh and two local sureties of the same amount to the satisfaction of the Trial Court.[Azad Ahmed Mir v. UT of J&K, 2021 SCC OnLine J&K 584, decided on 16-08-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Petitioner: Sr. Advocate R.A.Jan and Advocate Taha Khalil
For the UT of J&K: Sr. Advocate Mohsin Qadri, Advocate Mohammad Tahseen, Sr. Advocate Z.A.Qureshi and Advocate Razia