J&K&L High Court Orders Probe On Father's Plea Alleging Killing Of Minor Son In Staged Encounter By Indian Army In 1995

A bench of Justice Moksha Khajuria Kazmi was hearing a plea wherein the father of the deceased had alleged that his son Manzoor Ahmad Shalla, a minor, has been killed by the Indian Army in a staged and fake encounter on 26th October,1995, and thereafter branded as a militant. As a consequence a case under FIR No. 393/1995 for the commission of offences punishable in terms of Sections 307-RPC and 3/25 of the Indian Arms Act is stated to had been registered in this connection at Police Station Anantnag, which, however, had been closed as 'untraced'.

The petitioner prayed for the indulgence of the court to command the respondents to lodge an FIR under section 302 RPC in the case and get the same investigated by an independent Investigating Agency and punish erring officials who after investigation, are found to be involved in the killing of the innocent son of the petitioner.

The petitioner had in support of the innocence of his son also placed on record a photocopy of a 'Non Involvement Certificate' addressed to the SHO Mattan, in response to a letter purportedly issued by Major General Staff Officer Grade 2 for Commander, 1 Sector Rashtriya Rifles wherein, the said Sector had denied to have any knowledge or record about the incident referred to in the letter and as regards the involvement of Manzoor Ahmad Shalla S/o Ab Rahim Shalla R/o Mattipora Nanyil in subversive or militancy related activities directly or indirectly.

While the Additional Solicitor General acknowledged that an encounter had taken place in which four terrorists had been neutralised but in the same breath, he refuted the allegation of having killed the son of the petitioner on 26.10.1995.

Counsel for UT of J&K taking a different stand submitted that the petitioner's son Manzoor Ahmad Shalla had joined militant organization in the year 1995 who was killed by the Army 34-RR on 26th October, 1995, along with three other militants. The respondents also raised preliminary objection regarding the maintainability of the writ petition for having raised disputed questions of facts which cannot be adjudicated upon under writ jurisdiction

Dealing with the matter at hand the bench observed that the respondent UT of J&K are not clear in their approach. On the one hand they say that the petitioner's son was a militant who was killed by the security forces on 26th October, 1995, which has been denied by the respondent Union Of India and on the other hand they place on record a document that reflects the case in question to have been closed as 'untraced', Justice Kazmi noted.

Adjudicating further the bench observed,

"That the court is of the considered view that the reliefs sought for by the petitioner by the medium of the instant petition are not available to him for having raised the disputed questions of fact which cannot be gone into by this Court in its writ jurisdiction. However, taking note of the clear ambiguity in the stand of the respondent UT of J&K as regards the death or otherwise of petitioner's son, and in order to ensure that the picture is unclouded, the matter is required to be enquired into"

In view of the said circumstances the court ordered the DGP of J&K to initiate an enquiry into the matter to be conducted by an officer not below the rank of Senior Superintendent of Police who shall be bound to complete the enquiry and submit report, in this behalf, before the Registry of the court within a period of two months, the bench concluded.

Case Title: Abdul Rahim Shalla Vs Union Of India & Ors.

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