J&K&L High Court Reopens 2003 Nadimarg Massacre Case, Says Court Has Jurisdiction To Recall Order Which Is A "Nullity" In Law

The Jammu and Kashmir and Ladakh has ordered the reopening of the infamous Nadimarg Massacre Case, after a decade, by recalling an order dated December 21, 2011 whereby the criminal revision petition in the matter was dismissed.

The case relates to massacre of 24 Kashmiri Pandits by militant groups at Nadimarg village in Shopian district in 2003. Seven persons were arraigned as accused in the matter. However, prosecution's plea to examine material witnesses on commission, citing threat perception, was dismissed by both the trial court was well as the High Court through the impugned order. 

A bench comprising Justice Sanjay Dhar on Wednesday noted that the criminal revision petition was dismissed primarily because nobody had appeared on behalf of the State. It remarked,

"A criminal revision petition cannot be dismissed for non-prosecution...this Court does have jurisdiction to recall an order which is a nullity in the eyes of law." 

After the incident, a case (FIR No.24/2003) for offences under Sections 302, 450, 395, 307, 120-B, 326, 427 RPC, 7/27 Arms Act and Section 30 Police Act) was registered in Police Station, Zainapora in connection with massacre and investigations were taken up.

Counsel for the petitioners contended that that the impugned order was sought to be recalled as it was passed without hearing the petitioner and without adverting to the merits of the case.

Contesting the plea, the respondents countered by arguing that that a criminal court has no jurisdiction to review its own order in view of the specific bar contained in Section 369 of the J&K Cr.P.C, which is applicable to the instant case.

Findings:

While Justice Dhar agreed that a Criminal Court including the High Court, in exercise of its criminal jurisdiction, does not have power to review its own order however, he added that a criminal revision petition cannot be dismissed for non-prosecution.

Justice Dhar further recorded that though the High Court, while dismissing the Criminal Revision Petition had observed that the order of the trial court is well-reasoned and does not call for interference, but the fact of the matter remains that the Court was persuaded to dismiss the revision petition, primarily, because nobody had appeared on behalf of the State. The impugned order does not specify the reasons as to why the revision petition lacks merit, the bench noted.

The bench explained that a criminal matter cannot be dismissed for default and that it must be decided on merits because such matters relate to administration of criminal justice.

In order to buttress the said position the bench also found it necessary to record the observations of Supreme court in State of Punjab vs. Davinder Pal Singh Bhullar and others, (2011) wherein SC while while examining the bar to review/alteration of a judgment, in view of the provisions contained in Section 362 of the Central Cr. P. C, which is in pari materia with Section 369 of the J&K Cr. P. C, observed:

" If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment"

The bench thus recalled the impugned order and directed the Registry to post the revision petition for rehearing on September 15.

Case Title: State Through P/S Zainapora Vs Zia Mustaffa

Citation: 2022 LiveLaw (JKL) 121

Click Here To Read/Download Judgment