Jaswinder Singh And Others vs Union Of India And Others
2021 Latest Caselaw 956 j&K

                                                            Suppl Cause List-1
                                                               Sr. No. 1


         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                                Pronounced on : 24.08.2021

                                                 OWP No. 1064/2003
                                                 CM No. 6618/2019

Jaswinder Singh and others                               .....Petitioner(s)

                       Through :- Mr. Sunil Sethi, Sr. Advocate with
                                  Mr. Mohit Vaid, Advocate.

                                     v/s

Union of India and others                                ......Respondent(s)

                       Through :- Mr. Vikas Sharma, Panel Counsel
                                  for respondent Nos. 1 & 4.
                                  Ms. Monika Kohli, Advocate for
                                  respondent Nos. 2 & 3.

     CORAM: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                  JUDGMENT

1. The petitioners through the medium of present writ petition seek

quashment of the challan presented against the petitioners herein,

whereby sanction order dated 22.11.1994 has been accorded for

prosecution and that the petitioners have been exonerated by the

Departmental Enquiry Committee.

2. The petitioners have been arrayed as accused in the challan arising out

of FIR No. 17/1991 registered with Police Station, Karan Nagar,

Srinagar for offences under Sections 302, 307 & 452 RPC. The

occurrence of 11.06.1991 wherein allegedly 17 persons were killed and

some other got injured purportedly due to the indiscriminate firing by

the petitioners herein and three other persons has led to the filing of

challan against them on completion of the investigation. It is suffice to

mention here that the petitioners were posted in 67 Bn. of CRPF at the

relevant point of time. The investigations in the aforesaid FIR were

later on taken over by the CBI. It is profitable to give in brief the

scenario which led to the presentation of challan against the petitioners

belonging to CRPF. It appears that on 11.06.1991, one Constable

Abdul Mazid of B/67 Bn CRPF along with other personnel was

deployed for duty at Jaina Kadal picket and was killed in the firing by

the militants and information of this incident was received by Police

Station Maharaj Gung at 1600 hours. The CRPF personnel retaliated

the fire which resulted into killing of one civilian Ghulam Nabi Sheikh

and injury to Ghulam Hussain Mir. FIR No. 59/1991 came to be

registered of this occurrence. The incidents which took place at the

picket led to dispatch of three relief parties of C Coy. As per the

challan the CRPF personnel were not fired upon by the militants as

alleged and they opened indiscriminate firing without any provocation

which resulted into killing of 17 persons and injury to some others.

3. The petitioners have challenged the challan presented against the

petitioners on the basis that as the departmental enquiry was initiated

against the petitioners the challan should not have been presented

against them till the outcome of the enquiry proceedings. It is pleaded

that the sanction accorded for presentation of challan in the facts and

circumstances of the case is illegal and not in accordance with the

provisions which ought to have been applicable otherwise in the case.

Further, the petitioners being CRPF personnel and were discharging

the duties assigned to them at the time of occurrence the provisions of

Section 17(3) of CRPF Act apply in the present case and therefore the

same having not been followed the challan proceedings are required to

be quashed. It is also pleaded that the provisions of The Armed Forces

(Jammu and Kashmir) Special Powers Act, 1990 are applicable to the

present petitioners and are entitled to protection of Section 7 of the

Act.

4. The objections to the petition have been filed on behalf of the

respondents. The death of the civilians after investigation has been

attributed to the CRPF personnel who are arrayed as accused in the

challan. The legal submissions made in the writ petition are contested

by the respondents. It is submitted in the objections filed on behalf of

respondents through Additional DIG that departmental enquiry came to

be initiated in the year 1995 and by that time the challan had been

presented against the petitioners herein and therefore the contention of

the petitioners that the sanctioning authority should have waited for the

outcome of departmental enquiry and the factum of the enquiry

pending should have mentioned in the sanction order could not be

there. It is denied that the Government of India was not competent to

accord sanction for prosecuting the petitioners. The provisions of

CRPF Act and Special Powers Act are also not applicable, as per the

objections of CBI, as the acts complained against the accused persons

cannot be said to have been committed or purported to have been

committed in exercise of the powers conferred by the aforesaid acts

and in good faith. The other respondents have not made any specific

reply in this regard. Of course the respondents plead for dismissal of

the writ petition.

5. The death of 17 civilians and injury to some other persons allegedly

due to indiscriminate firing by the petitioners herein has resulted into

filing of challan against them. The act of the petitioners during

occurrence is consequence of the duty required to be performed by the

petitioners or the act is not connected with the discharge of duties of

the petitioners involves factual aspects which the court in exercise of

its extraordinary jurisdiction cannot finally determine and give findings

on the same. This court cannot scrutinize the matter which may require

detailed analysis by the trial court. The present case definitely hinges

upon the factual aspects of the matter and the legal aspects are required

to be determined in the light of what may be held on factual aspects of

the case. The learned senior counsel appearing for the petitioners has

tried to explain the ground situation in which the security personnel

were and which led to the killing of 17 civilians and further

demonstrate that the petitioners acted on the directions of their

immediate superiors who commanded the action at the relevant time

and therefore what was done by the petitioners was in discharge of

their duties and not otherwise. The other side has contended that the

petitioners did not act responsibly on spot during the occurrence and

what was done by them cannot be said to be in discharge of duties

which led to the killing of civilians and injury to some persons.

6. The investigation has resulted into filing of the challan case against the

petitioners. How the occurrence took place and the manner in which

the petitioners acted which resulted into the killing of civilians cannot

be a matter of speculation and is required to be thrashed in the challan

proceedings. The court though may agree with the submission of the

learned Senior counsel about the law and order situation prevailing

during the relevant period but the situation on spot in the present case

can be said to be such which comes to the rescue of the petitioners for

their action and the charges leveled against them cannot be gone into

and commented upon in the present petition. It will be for the trial

court to make detailed analysis on the factual aspects of the matter.

7. Mr. Sunil Sethi the learned senior counsel appearing on behalf of the

petitioners has also argued that the persons on whose command the

petitioners acted have been let off whereas the petitioners who were

infact only obeying the orders of superiors have been roped in which,

in any case, speaks of bias by the investigating agency. As the charge

sheet has been presented against the present petitioners and three

others the court is not required to make any observation with regard to

the part played by the others during the course of occurrence as

submitted on behalf of the petitioners. The challan cannot be the

subject matter of quashment on the basis of the above plea taken by the

petitioners.

8. Learned senior counsel appearing for the petitioners has submitted that

the provisions of Special Powers Act squarely cover the petitioners and

the petitioners are required to be protected in terms of Section 7 of the

Act as the petitioners had acted in exercise of powers conferred by the

Act. The provisions of CRPF Act have also not been taken care of by

the authorities and therefore the petitioners have been deprived of the

protection as their act was in discharge of official duty and in good

faith. The other side has however submitted that the petitioners are not

entitled to the protection as provided under the above said provisions

in the facts and circumstances of the case and that is why those

provisions cannot be pressed into service by the petitioners.

9. The respondents after investigation of the case have found that the

petitioners were responsible for the killing of the innocent persons. The

petitioners were not thought fit to be entitled to any protection under

the provisions of the CRPF Act or the Special Powers Act (supra) and

that is why the protection provided under those provisions of law was

not provided to the petitioners. However, it is open to the petitioners to

raise contention that they are entitled to protection on account of above

provisions of law during the course of trial as the factual aspects unfold

in the matter.

10. The learned counsel for the petitioners has also submitted that the

petitioners may even feel satisfied if the direction is given to the

authorities to consider the case of the petitioners in the light of the

provisions of CRPF Act and Special Powers. It is not within the

province of this court to pass any such direction to the respondents in

the present petition more so when the challan already stands filed

against the petitioners. If the respondents intend to invoke the

provisions of the said Acts at any point of time it is for them to take

call on the same.

11. Last but not the least, the sanction granted for prosecuting the

petitioners in terms of Section 197 of the Central provision of Cr.P.C is

bad in law and therefore the challan can be quashed on that score is

also the argument raised on behalf of the petitioners. The other side has

submitted that this ground is not available to the petitioners at this

juncture and even if there is any defect in the sanction, for the sake of

argument, the same cannot have any effect in the case.

12. The submission of the learned counsel for the petitioners herein does

not hold water in the present case. Merely because some error has

occurred in mentioning the wrong provision of law, section or rule in

the sanction order that will not by itself vitiate the sanction. No

prejudice can be said to have been caused to the accused persons on

that account only.

13. In (2019) 4 Crimes SC 313 titled 'Station House Officer,

CBI/ACB/Bangalore versus B.A.Srinivasan and another' the Hon'ble

Supreme Court noted the judgment reported in (2015) 13 SCC, 87

where the court held that whether the alleged act is intricately

connected with the discharge of official functions and whether the

matter would come within the expression while acting or purporting to

act in discharge of their official duty would get crystallized only after

evidence is led and the issue of sanction can be agitated at a later stage

as well.

14. As far as the question of outcome of departmental enquiry in favour of

the petitioners is concerned, the same is of no support to the petitioners

herein. It is revealed from the record that the departmental proceedings

were started against the petitioner after the presentation of challan and

obviously the departmental proceedings culminated during the

pendency of the present challan. Irrespective of the pendency of the

enquiry proceedings, the challan could be produced against the

petitioners on the basis of investigations carried out by the concerned

agency cannot be disputed. The initiation of enquiry proceedings

during the investigations or even the enquiry resulting favorably for the

petitioners could not automatically result into non-filing of the challan.

The departmental proceedings and the criminal proceedings arising out

of filing of FIR are different in nature. Merely because the

departmental proceedings favored the person does not mean that he

cannot be prosecuted in criminal proceedings. It may be mentioned

herein that the respondents have filed the affidavit to the effect that the

record pertaining to the enquiry proceedings stands destroyed after

approved for weeding in Feb. 2015.

15. The court cannot entertain the pleas raised in the present petition. No

effective proceedings have taken place in the challan till date as the

petitioners approached the court at the inception of filing of the

challan.

16. In view of the discussion made above, the Court does not find merit in

the writ petition. The petition is, accordingly, dismissed for the reasons

stated above. It is however made clear that the petitioners are at liberty

to take all the pleas raised in the present petition at the appropriate

stage of the proceedings in the challan. This court shall not deem to

have made any observation otherwise on the merits of the challan.

Record be sent back.

(Puneet Gupta) Judge Jammu:

24.08.2021 Pawan Chopra

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

PAWAN CHOPRA 2021.08.25 17:00 I attest to the accuracy and integrity of this document