JASWINDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(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 and 452 RPC. The occurrence of 11/6/1991 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 11/6/1991, 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 Sec. 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 Sec. 7 of the Act.