MUSHTAQ AHMED CHACHA Vs. STATE

JUDGEMENT

(1.) A petition u/S. 491, Cr.P.C. was filed way-back in 1995 with the prayer requiring the respondents to disclose the authority under which Mushtaq Ahmed Chacha is detained and to show cause why he should not be set at liberty. This was so after the subject Mushtaq Ahmed Chacha was alleged to have been arrested on 9-7-1995 by 41st Bn. B.S.F. during Krack-down of Mahraja Gunj area of city of Srinagar. The respondents failed to supply whereabouts of the detenu to family members of the subject and the cause was not shown except that it was pleaded and submitted that the Mushtaq Ahmed Chacha detainee was arrested in FIR 4/95 registered at P/S CIK, Srinagar u/Ss. 302, 307, 276, 278, 120-B RPC and 121(a) and 25, Arms Act. Further respondents 4 and 5 representing 41st BN. of BSF, however, disclosed that during interrogatory detention Mushtaq Ahmed Chacha pointed to some location of Hizbul Mujahideen out-fit hide-out in different parts of the Srinagar city and, therefore, on 15-7-95, the said subject was taken up by the B.S.F. authority in custody for operational purposes for recovery and when the party accompanied by the detenu reached Kani-Muzar area the BSF party was attacked and cross firing ensued and the subject gave slip to the BSF authorities an escaped. The BSF lodged FIR 92/95 u/Ss. 216/307, RPC, 3/25 Arms Act with Police Station Baghiyas but the subject has not been traced hereto.

(2.) In this backdrop a co-ordinate bench of this Court after inviting objections and hearing the parties ordered enquiry in the matter by Additional District and Sessions Judge, Srinagar vide order dated 25-2-1997. The Additional District and Sessions Judge held the enquiry. Evidence was received. Statements of witnesses produced by the parties were recorded. Upon hearing, on consideration the Additional District and Sessions Judge, concluded the proceedings and filed his report along with record. On detail enquiry after admitting/recording appreciating evidence, he came to the conclusion that for custodial dis-appearance of the subject, after his arrest by BSF 41st Bn. and lodgement with CID, CIK, Srinagar (in FIR 4/95 registered at CIK, Srinagar) under the charge of SP CID, CIK Srinagar, the SP CID, CIK is squarely to be blamed for dis-appearance of Mustaq Ahmed Chacha from custody. Though it is also mentioned that the BSF people represented by respondents 4 and 5 cannot escape their share of blame for the custodial disappearance of the subject, in as much as, they have failed to lodge FIR immediately after the alleged escape of Mushtaq Ahmed Chacha and that too in absence of any plausible explanation for delay in lodgement of FIR. On these conclusions the enquiry officer Additional District and Sessions Judge, Srinagar concluded :-

(3.) To this report dated 20-7-2000, the BSF represented by respondents 4 and 5, as also Home Department and DG of Police and SP, CID, CIK Srinagar representing State Government, have filed their objections.