Kunan: The Case Reopening Order

As the PIL in the state high court was being considered for the orders, the prosecution formally submitted before the designated court in Baramulla, the closure report of the case after 22 years. It triggered a protest petition from lawyer Parvez Imroz on behalf of some victims from Kunan village. It finally led to the passage of following detailed order by magistrate J A Geelani. The order passed on June 18, 2013 is being reproduced here.

Court of Sub Judge Judicial Magistrate, Kupwara
(Present: – J. A. Geelani)

File No.                                             Date of institution                                         Date of decision
297/Ikhtitami                                  04-03-2013                                                        18. 06.013

In the case of: –          Final Police report u/s 173 Cr. P.C
State through P/S Trehgam
FIR No. 10/1991 u/s 376-452-342/RPC

Ld. Counsel for the complainants
CPO for the state:-

                                                                        ORDER

A full 22 years after the FIR registration and completion of investigation up to 12-10-1991 the prosecution on 04-03-2013 (4th of March, 2013) filed a closure report u/s 173 criminal Procedure Code (Cr. P. C for short) stating that at the end of investigation, they did not find enough evidence to prosecute, as such seeking the ‘closure’ of the criminal case registered on 08-03-1991 of Police Station Trehgam for the offences u/s 376.452.342/RPC against 4th Raj Rifles.

The final report as submitted is reproduced here as under:-

“On 8th of March, 1991 a letter in English language from District Magistrate Kupwara through Police Headquarter Kupwara, came to be received where in it was stated that the inhabitants of village Kunan Poshpora lodged a written complaint to the extent that during the intervening night of 23/24 Feb. 1991 the Army Battalion of Raj Rifles 63 Brigade C/O 56 APO Camp Trehgam cordoned the village at 11 O’ Clock night and intruded forcibly into the residential houses, took men (males) into their custody, locked them inside two houses, continued interrogation and a few army men made forcible entry into the houses and on gun point committed gang rape upon 23 ladies indiscriminately whether old aged ladies, virgin, married or pregnant and continued the said rape till 24th of February 1991 up to 9 AM morning. The victims of the rape were restrained to raise hue and cry for help and rescue.

Upon receipt of the above mentioned report, Police Station Trehgam registered FIR under No. 10/1991 u/s 376.452.342/RPC and stated preliminary investigation through H/C Lal Mir 215/KP, who conducted spot inspection prepared Naksha Moka Nazri, filled up injury memo and prepared a docket for medical examination of the lady victims of rape, seized torn clothes as a piece of evidence, arranged medical examination of the injured and the victim ladies and obtained medical opinion. In view of the nature of the case, further investigation was conducted by Sh. Farooq Ahmad Shah, ASI the then SHO, who recorded the statements of the witnesses acquainted with the facts and circumstance, seized more torn clothes produced by the witnesses of the occurrence for evidence.

As per medical examination report, offense u/s 376/RPC stands prima facie proved and made out against 4th Raj Rifles under the command of Commandant Adjutant R. Kuler. The arrest and the identification of the culprits was only to be done, however on 22-03-1991. Director General of Police entrusted the investigation of the case to Sh. Dilbagh Singh, IPS SP Headquarter Kupwara.

A fresh investigation was conducted by the said officer who recorded the statements of witnesses afresh. On 26-03-1991, Sh. Dilbagh Singh constituted a SI comprised of CPO Mohd Shafi and Sub Inspector Bashir Ahmad Dar, who during the course of investigation arranged the medical examination of the child, who was alleged to have taken birth after the occurrence of rape upon his mother.

During the course of investigation one more application through SP of the district was received from inhabitants of Kunan Poshpora which has been made part of investigation. They involved army unit 4th Raj Rifles through Adjutant Rangan Mahajan Captain forwarded nominal role in which 125 army men were nominated.

However, the SIT conducted fresh investigation and recorded the statements of witnesses afresh. Army men submitted NOC certificate in which the name of the witnesses was not shown nor their signatures were appended. Statements of few army employees were recorded and in the meanwhile I/O was transferred and on 12-07-1991 Sh. S. K. Mishra, SSP Kupwara conducted investigation afresh, recorded the statement of BMO, made spot inspection and inquired from the witnesses of occurrence and recorded the statement of more army personnel who in their statements stated that Unlawful Arms and ammunitions were recovered from the place of occurrence whereas, the ladies victim of the rape did not cause their appearance before the SSP Kupwara rather they expressed reservation to appear before the I/O sent the case for guidance/brief to the Director Prosecution of the time in the office of Director General of Police where Director Prosecution vide his letter No. Gb-123/91/5032-33 dated 23-09-1991 opined that the challan is not maintainable and accordingly in light of this letter, the I/O of the time closed the investigation on 12-09-1991 as untraced. It may be mentioned that the case file was under the examination in the offices of high ups and on its return as per directions of high ups, the final; report has been prepared and framed. Hence the Ikhtitami (final report) is submitted for perusal.”

Upon receipt of this report on 04-03-2013, this court ordered issuance of notice to the complaints / informants, pursuant to which M/S Lal Dar S/O Jamal R/O Kunan Poshpora, Ghulam Ahmad Dar S/O Asad Dar S/O Kunan Poshpora, Khaliq Dar S/O Hassan Dar R/O Kunan Poshpora, Abdul had Dar S/O Gh. Mohd Dar R/O Kunan Poshpora, Ghulam Ahmad Dar S/O Aziz R/O Kunan Poshpora, Mohd Sidiq Dar S/O Hayat Dar R/O Kunan Poshpora and lady victims appeared & resisted the closure report and in unequivocal terms stated that during the intervening night of 23/24 February, 1991 army personnel cordoned off the area, intruded into the residential houses, took away the male inmates, kept them locked into houses for interrogation and committed gang rape upon the women and continued the said rape till morning, however, no action was taken.

I have perused the case dairy, statements recorded during the course of investigation, site plan, basic complaint of the complainants addressed to DC, SP District Headquarter Kupwara, official letter of District Magistrate bearing No. 1956-61 dated 07-03-1991 addressed to Divisional Commissioner Kashmir, and endorsement over leaf which is as R-I SHO P/S Trehgam “Let me know what action was taken. If case is not registered. Case is to be registered on the basis of complaint of DM Kupwara.”

I have also gone through the Naksha Moka Nazriya made, seizure memo 54-55-56, seizure memo 13-14-15-16-17 medical opinion of Block Medical Officer Kupwara recorded overleaf of the docket dated 20-03-1991, 21-03-1991, 15-03-1991. I have gone through the FWD OF NOMINAL ROLE forwarded to I/O Dilbagh Singh, Assistant Superintendent of Police Headquarter Kupwara by Rangan Mahajan Captain Adjutant received on 07-05-1991 which reveals on the face of it that the certificate bears no signature of the person named therein as witnesses. I have gone through the statements of the acquainted with the facts and circumstances recorded u/s 161 Cr.P C. I have also gone through the statement of Dy Commissioner Kupwara recorded u/s 161 Cr. P.C. I have also perused the clarification sought by the I/Os from the doctor who examined the victims of the offenses. I have also perused zimmi dated 12-09-1991 & 12-10-1991 recorded by S. K. Mishra, IPS SP Kupwara. During the course of perusal, I have also come across the observations made and recorded by the Director Prosecution to whom file came to be submitted for examination vide DGPS CB/960 (I) Inf. 91. dated 27-05-1991. I would be pertinent to produce the said observations made by the then Director Prosecution as under:-

Police Headquarters J&K Srinagar
The SP Kupwara
            No.        GB-123/91/5032-33 dated 23-09-1991
            Subject: – Case FIR no. 10/1991 u/s 376-452-354-3422-325-323/RPC P/S
            Ref: –       Your letter No. 8666/RII/91 dated September 12, 1991
                     The case has been thoroughly examined in the police Headquarters and found suffering of the following defects:-

I.    The statements of the witnesses are not only stereo typed but also suffer from serious discrepancies and contradictions.

II.    It is surprising that such a sensitive incident was not immediately reported to local Police station, which is located hardly three kms from the place of occurrence.

III.    The report purported to have been written by the villagers on February 25/26, 1991 was actually presented before the District Magistrate on March, 4 i.e. seven days after the occurrence which could give rise to the legal presumption that the incident has been stage managed.

IV.    The inability of the witnesses to identify the alleged accused has introduced a fatal and incurable lacuna in the prosecution story.                                 

In view of the above the case is totally unfit for launching criminal prosecution in the court of law. The case may be therefore, finally reported. The C. D file along with connected papers are returned herewith.

                    Sd/
                  Director (Prosecution)
                For D G of Police

Enclosed CD file.
            Copy to DIG of Police Kashmir for inf &n/a.

Received on 30-09-1991.

I have also the occasion to peruse the forensic opinion tendered by scientific officer Mohd Shafi on 15-05-1991, dockets of I/O forwarded to Commanding Officer of the accused and response from the Headquarter 50 Corps GS (OPPS). Upon perusal it appears that 68 Montain Brigade Trehgam through Brigade vide letter no. 1203/BIV/GS (OPS) dated 19-04-1991 states that higher quarters of the army have intimated that that requirements for investigation be projected through the DG of police J&K to Hq requirement of investigation through proper channel.

In order to deal with the final report submitted by the police as closed for being the accused untraced, it would be profitable to bear in mind that the investigating agency has to conduct the investigation within the four corners of law and the Magistrate is also bound to exercise powers within the four corners of Cr. P. C. or Sec. 170 Cr. P. C. I am conscious of legal Code starting from Sec. 154 to190 Cr. P. C. the position has been made clear in

01.        A K Roy v/s State of West Bengal,
Decided on 4th October, 1961
02.         Abinandan Jha & ors. v/s Dinesh Mishra S. C
Decided on 17-04-1967
03.        Vasant Dubay v/s State of Haryana & ors.
Decided on 17-01-2012
04.        Tavinder Kaur v/s State of Haryana & ors.
Decided on 17-12-2011
05.        Dhas Mana v/s C.B.I (2001) (7) SCC 536
06.        Bhagwant Singh v/s Commissioner of Police
(1985) (2) SCC 537
07.        M/S India Carate (P) Ltd. v/s State of Karnataka
1989 (2) (SCC) 132

The position viz-a-viz the Ikhtitami (final report)    u/s 173 Cr. P C whether it is in terms of Sec. 169 or Sec. 170 Cr. P.C precipitates as under :-

I.    Every investigation shall be completed without unnecessary delay,

II.    As soon as it is complete, the officer in charge in police station shall forward to Magistrate empowered to take cognizance of the offense on a report, a report in the form prescribed by the government.

III.    After forwarding the final report to the Magistrate further investigation is not precluded and whereupon such further investigation evidence oral or documentary is obtained, the officer in charge in police station can file further or supplementary reports in the form prescribed.

IV.    The Magistrate upon receipt of the final report whether a charge sheet or a closure report has to adopt the following courses :-

(a)    May take cognizance of any offense upon police report (Sec. 190 1 b of Cr. P.C)

(b)    May accept the final report known as closure report in (colloquial language) and accordingly drop the proceeding.

(c)    May reject the prayer made for closure report and take cognizance.

(d)    May order investigation u/s 156 (3) Read with 190 1 b Cr. P.C or

(e)    Make an order for further investigation u/s 173 (8) of Cr. P.C.

It may be mentioned herein that the term charge sheet, closure report, untraced report, re-investigation and fresh investigation are recognized by the investigating agency rather than Chapter XIV Part V of the Code of Criminal Procedure Svt 1989. I am conscious of the legal position that Judicial Magistrate has no inherent jurisdiction in Cr.P.C. Magistrate, Magistracy and Police are complimentary to each other, Magistrate cannot impinge upon the jurisdiction of the police by compelling them to change their opinion so as to accord with his view and the Magistrate cannot direct the police to straight way file charge sheet.

The de-facto complainant though did not file a Narazgi (protest petition) against the closure report, yet in their statements recorded pursuant to notice have stated that the alleged offense against them has been perpetrated by the culprits but no action has been taken. However, at this stage during the course of consideration of closure report a protest petition came to be filed on behalf of Mst. Sara and Abdul Ahad Shah residents of Kunan Poshpora Trehgam Kupwara through their counsel which consists of seven pages accompanies with copy of judgment of Jammu & Kashmir Human Rights Commission Srinagar with affidavits of Mst. Sara, Abdul Ahad Shah supported by a copy of judgment titled Vinaytyag vs Irshad Ali @ Deepak &other decided on 13th December, 2012. Through the medium of this protest petition has prayed as under:-

a.    Direct the police, and specifically a SIT headed by an officer not below the rank of SSP, to conduct further investigation into FIR NO. 10 1091 P/S Trehgam u/s 173 (8) of the Cr. Pc.

b.    Expunge from the record all the statements taken by this court following the filing of the closure report.

c.    Pass any such further order or orders, as this Hon’ble courts deem fit.
Upon receipt of the instant protest petition, copy was furnished to Chief Prosecuting Officer who filed detailed objections consisting of five pages with the prayer as under :-

“Keeping in view the objections filed by the CPO and law on the subject, the protest petition / application u/s 173 (8) of Cr. P.C may be dismissed and same may be done in consonance with the larger interests of justice.”

Heard the Ld. Counsel for the applicants / protest petitioners and Ld. CPO on behalf of the state.

The Ld. Counsel for the petitioners have urged that upon receipt of closure report, the Magistrate cannot call upon the complaints and record their statements during the course of consideration of the closure report and as such, the statements recorded are to be expunged.

The Ld. CPO has contended that the whole record of the case stands appended with the closure report for the appraisal of the Hon’ble court and by way of the instant protest petition / application u/s 173 (8) of Cr. P.C, the de-facto complaint cannot step into shoes of the Hon’ble court for investigating agency, and may advise as to what to do or not to do while considering the closure report. Since we are governed by well settled procedural law as such, the assertions raised in the protest petition does not sustain in the eyes of law. Ld. CPO has further argued as under:-

“That this Court, after perusal of the closure report had issued process and summoned a few persons (witnesses) acquainted with the facts and circumstances of the case and got their depositions recorded in the said closured report. The records on behest of the de-facto complainants, as they intended to get the said persons (witnesses) examined and got their statements recorded in the manner, which suits them. It is pertinent to mention here that during the course of the recoding the statements of said persons by a legal petitioner. Assuming for while, if it is taken that this Hon’ble court may pass an order in the closure report directing thereby further investigation in the matter, the statements recorded by this Hon’ble court of the said persons (witnesses) will form foundation for said direction. Thus the question of expunging of statements of said persons (witnesses) does not arise at all.”

I have gone through the petition and the objections against the said petition. Having considered the rival contention put forth, in my opinion the contents of the protest petition though contains extra material to the closure report pending consideration yet it assisted the court in dispensing with recording of considering the opinion of the investigating agency that the case be treated closed as untraced. The procedure which this court has adopted during the consideration of the closure report is in consonance with the judgment of Hon’ble Supreme Court which the counsel for the protest petitioners has enclosed with the protest petition. The relevant para of the judgment titled VinaTyagi v/s Irshad Ali @ Deepak decided on 13th December, 2012 is reproduced as under :-

    26.    interestingly and more particularly for answering the question of legal academia that we are dealing with, it may be noticed that this court, while pronouncing its judgment in the case o f Hemant Dahsmana v/s CBI, (supra) has specifically referred its judgment of S. Papaiih (suspra) and Bhagwant Singh v/s Commissioner of Police 7 amp. Amr (1985) 2 SCC 537. While relying upon three judge Bench judgment of Bhagwant Singh (supra), which appears to be a foundational view for development of law in relation to sec. 173 of the Code, the court held that the magistrate could drop the proceedings after filing of report u/s 173 (2) without notice to the complainant, but in paragraph 4 of the judgment, the three bench dealt with the powers of the magistrate as enshrined in sec. 173 of the code. Usefully, para 4 can be reproduced for ready reference.
4.    Now, when the report forwarded by the officer-in-charge of Police station to the Magistrate, under (2) (i) of sec. 173 comes up for considered by the Magistrate, one of two different situations may arise. Report may conclude that an offence appears to have been committed by particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceedings or (3) he may direct further investigation under (3) of Sec. 156 and require the police to make a further report. The report may on the other hand state, in the opinion of the police, no offence appears to have been committed and where such report has been made, the Magistrate again has an option to adopt one of three courses :- (1) he may accept the report and drop the proceeding or (2) he may disagree with the report taking the view that there is sufficient ground for the proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under (3) or Sec. 156 where in either of these two situations, the Magistrate decides to take cognizance of the offence is taking by the Magistrate and it is decided by the Magistrate that case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding against some, there is no sufficient ground for proceedings against the others mentioned in the first information report, the information would certainly be prejudiced because the first information report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the first information report lodged by him is clearly recognized by the provisions contained in (2) of sec. 154, (2) of Sec. 157 and (2) (ii) of Sec. 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the first information report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of the Police Station of under Sub Section 2 (i) of Sec. 173, the Magistrate is not inclined to take cognizance of the offense and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to pursuance the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the magistrate to whom the report is forwarded under (2) (i) of Sec. 173 decided not to take cognizance of offense and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time consideration   of the report.

The above para of the judgment of the Hon’ble Supreme Court is an apt reply to the contention of Ld. Counsel for the protest petitioners who through the instant petition and oral submission has projected that the notice and the statements of the informants was uncalled for. What the court was supposed to do when there was no formal protest petition on behalf of the informants / complainants was to have their stand viz-a-viz closure report recoded to arrive at a just conclusion.

The second contention of the Ld. Counsel for the protest petitioners is that the investigation be conducted by SIT. To this contention I am of the view that the Magistrate while considering the final report has to make appropriate order directed to same Investigating Agency or not is the domain of the Magistrate. What the Magistrate has to do in the course of consideration of the final report is to provide the likely affected persons an opportunity of being heard but the final decision / finding rests with the re-producing the communication of SP Kupwara addressed to Inspector General of Police Kashmir Zone Srinagar, dated 01-03-2002 where under the concerned addressed as under :-

That on 23/24-02-1991, 125 officers and jawans of Four Raj Rifles (68 Brigade C/O 56 APO then deployed at Trehgam) cordoned village Kunan Poshpora, jurisdiction of Police Station Trehgam at 2300 hours. The army tortured, some forced persons the ladies of village Kunan Poshpora were separately questioned / interrogated up to 0900 hours of February 24 1991. After the sick operation was concluded, the villagers lodged protest at Kupwara with the following allegation :-

(a)    That during the intervening night of 23/24-02-1991, army personnel of said unit after consuming the liquor, gang raped 23 ladies irrespective of their age and marital status.

(b)    Their clothes were torn and their chastity was outraged.

(c)    That the daughter and daughter-in-law of (X), (Note: – the name of the victim Is withheld in compliance to Hon’ble Supreme Court guidelines) were also raped despite the fact that he showed his identity card as a village guard.

One of the ladies had delivered a baby only few days back.

From  the court records of the case file, it transpires that the people called on the then Dy Commissioner, Kupwara also with a written complaint who along with police Trehgam on March 7, 1991 and a copy of the report was marked to SSP Kupwara for registration of case. Accordingly, SHO Trehgam under the direction of SSP Kupwara registered a case FIR No. 10/1991 u/s 376, 452, 342/RPC. Initially the case was investigated by the then SHO Trehgam and then SP Kupwara Sh. Dilbagh Singh, IPS and finally by the then SSP Kupwara S. K. Mishra, IPS.

The investigating officers have examined about 32 witnesses including 23 ladies regarding the incident. The victim ladies have also been referred for medical examination. The statements on record are sketchy and cryptic, however, the witnesses have proved the allegations to the extent of torture of village folk, gang rape of 23 ladies including deaf girl (Mst. x) W/O (Y) R/O  (Kunan Poshpora) (Note: – the name of the victim Is withheld in compliance to Hon’ble Supreme Court guidelines).

The case file does not sick speak for identification parade of the 125 officers and jawans of the unit which has fatally affected the investigation.

This case after remaining under investigation up to 12-10-1991 with the Sr. Police Officers of the district has been concluded as untraced on the observations of Director Prosecution PHQ on the following grounds :- (not material for this court to make repetition of the observations).

Upon perusal and consideration of the entire material evidence collected during the course of investigation, in my opinion, the instant final report ought to have been forwarded to the Magistrate way back on 12-10-1991 when the investigation was concluded as untraced on the observations of Director Prosecution PHQ to enable the Magistrate to proceed in accordance with law.
Secondly, the observations recorded by the Director Prosecution to convict, acquit or discharge the accused, more so when courts usually charge the accused even on reasonable suspicion. Even as per Police Act 1861 the District Magistrate has a bit administrative control over district police.

Thirdly, until date the investigating agency has not unveiled the identity of the culprits despite having a clear cut nominal role of 125 suspects. Investigating agency under police rules 657 of J&K Police manual have not materialized at least an identification parade. Fourthly, allegation of gang rape should have been investigated keeping in view the status of suspects, wee hours of night and attending circumstances, more so, when it is prima facie established that during night hours the men folk was taken out of their houses locked up in two houses separately from their families then who could have raped the women folk for the entire night when their husbands and their males were not with them for that ill fated night, is a circumstance which makes an unbreakable chain to put the suspects of trial.

Further, there is presumption in a gang rape in favor of the victim.

I am conscious of the fact that there are legal impediments for taking straight way cognizance u/s 190 in the present form for the reason that offence alleged, is an offence exclusively triable by the Court of Session read with Sections 197 Cr. P.C, 549 Cr. P.C and Rules made there under and the Army act. This court, however, directs for further investigation to unravel the identity of those who happened to be perpetrators of alleged crime. Accordingly the final police report for closure as untraced is returned for further investigation. Office to retain Photostat of relevant final report, maintain index in the office and assigns page numbers to the papers on the original file and obtain acknowledgement receipt therefore from the prosecution. However, to have transparency in the investigation, be carried out by police officers not below the rank of SSP and be completed as soon as possible within a period of three months from the date of receipt of the file.

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