Supreme Court of India upholds High court order

Posted September 14, 2009 from India

Afsana Rashid Indian administered Kashmir, September 14

In its recent judgment Supreme Court has not only dismissed Special Leave Petition [SLP] but upholds the order of High Court of Jammu and Kashmir asking Colonel Kishore Malhotra to make himself available before Special Investigation Team [SIT] so that investigation into disappearance of Jana’s husband, Manzoor Ahmad, could be completed.

“Upholding the High Court order, which has directed Colonel Malhotra to appear before the SSP for investigation, who is the chief investigation officer of the team, the appeal has been dismissed by the Supreme Court on Monday, August 24,” says Jana and her daughter Bilkis.

According to SLP No: 23370 – 71 of 2008, titled Union Of India versus Musmat Jana and others, the Union of India has challenged the orders dated 5-06-2008 and 10-07-2008 of the High Court of Jammu and Kashmir.

“The High Court had directed Chief Judicial Magistrate [CJM] Budgam for holding an enquiry and the CJM has indicted Colonel Malhotra for disappearing Manzoor,” says the mother-daughter duo.

They said that the High Court had constituted a Special Investigation Team [SIT] for conducting investigation. “On 10-07-2008, the court had observed that Colonel Malhotra, currently posted at Brigade Headquarter Drass, should appear before the SP Srinagar, the investigating officer. Instead of appearing before the SP Srinagar, the SLP was filed before the Supreme Court,” they said.

Expressing satisfaction over the judgment, Jana says, “Now I expect justice. So far no one has got even such relief.” Her daughter, Bilkis adds, “We express our thanks to Gautam Navlakha and Prasad Bushan, senior advocate Supreme Court for the support they’ve extended to us.”

Jana’s husband, Manzoor Ahmad Dar was arrested on January 19, 2002 by a contingent of 35 Rashtriya Rifles led by Colonel Malhotra.

Jana said that contention made in the appeal was that summoning of armed forces in relation to discharge of his duty under Armed Forces (Special Powers) Act [AFSPA] 1990, as an accused, will amount to institution of prosecution requiring sanction from the central government, under section 7 of AFSPA. However, the plea made by her counsel, according to Jana, was that merely appearing before investigating team doesn’t amount to prosecution requiring sanction. “Once the investigation is complete and final report is filed before the magistrate and if the magistrate after taking cognizance of the said report issued summons to the accused, it is at this stage prosecution starts and warrants sanction.”

Pervez Imroz, patron Coalition of Civil Society says, “It is appreciable judgment. Supreme Court has dismissed impunity atleast upto investigation.”


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