J&K&L High Court Orders Expeditious Trial In Nadimarg Kashmiri Pandit Massacre Case, Proceedings To Resume After A Decade

The Jammu & Kashmir and Ladakh High Court on Saturday allowed a revision petition of J&K Police in the 2003 Nadimarg massacre case — the verdict means the trial which had abruptly halted more than a decade back can now resume.

Justice Vinod Chatterji Koul in the judgment pronounced today afternoon ordered the trial court to take all necessary measures for ensuring examination of witnesses by "issuing commission and/or recording" their statements through videoconferencing.

The trial court shall ensure expeditious proceedings so as to conclude the matter at the earliest, said Justice Koul.

A total of 24 Kashmiri Pandits were killed in a remote village in south Kashmir's Shopian district in 2003. The main accused Zia Mustafa, a Lashkar-e-Toiba Commander, was killed by armed forces in October last year. At least six persons including cops facing charges of dereliction of duty are accused in the case.

On August 24, the High Court had restored the revision petition of the State which had been dismissed in December 2011 for non-prosecution. The Supreme Court earlier, in 2015, had asked the high court to consider recalling the 2011 order.

The revision petition had challenged an order passed by Principal Sessions Judge, Shopian in February 2011 on prosecution's application "seeking permission to examine material prosecution witnesses on commission". The prosecution had then argued that the witnesses had migrated out of Kashmir valley and they were reluctant to depose before the trial court in south Kashmir in view of the threat perception.

The trial court had dismissed the application, saying it had been filed at a belated stage just to avoid the disposal of the case. It had also said since all the witnesses are very important, their statements cannot be taken on commission.

Justice Koul on Saturday said the trial court had dismissed the application of prosecution for examining the witnesses on commission on "the irrelevant consideration" while overlooking the material and relevant aspects of the case.

"The said application of the prosecution for recording statement of witnesses on commission deserved to be allowed," said the bench, while setting aside the order dated 09.02.2011 of the trial court.

The court found merit in the State's argument that trial court failed to appreciate the difficulty of the prosecution in procuring the presence of the witnesses and "that endeavour of the court below in a case of heinous nature like one on hand should be to examine all the witnesses on commission so as to unveil the truth".

Referring to Section 503 CrPC (of the erstwhile state of J&K), Justice Koul said a court can dispense with the attendance of a witness in certain circumstances and may issue a commission for the examination of the witness.

"Section 504 Cr.P.C., which is almost parimateria to Section 284 of the Central Cr.P.C., inter alia, provides that if the witness is within the territories to which the Code extends, the commission shall be directed to the District Magistrate within the local limits of whose jurisdiction the witness is to be found," it explained.

The court also relied upon Supreme Court's decision in State of Maharashtra vs. Dr. Praful B. Desai, (2003) and said the apex court has held that recording of evidence by way of videoconferencing is permissible.

"The Supreme Court has also said that where attendance of witness cannot be procured, the court could consider issuing a commission to record the evidence by way of videoconferencing," it added.

Justice Koul said the Nadimarg case can also be dealt with on the same lines as has been adopted and directed by the Supreme Court in Dr. Praful B. Desai.

"So, the court below, in the present case, could have allowed the application of the prosecution-petitioner and could have recorded the statement of witnesses on commission or through video-conferencing," the bench added.

Referring to Manju Devi vs. State of Rajasthan and another, (2019), Justice Kaul said the Supreme Court has held that the age of a case cannot be decisive of the matter when a prayer is made for examination of material witness and that issuing of commission and recording evidence through videoconferencing appears to be a viable alternative. 

The State had told the court there are as many as 38 witnesses in the case but prosecution has been able to get recorded depositions of only 13 of them. Despite strenuous efforts, the prosecution has not been successful in securing the presence of other witnesses, it had submitted.

"Even the learned court below issued notices and warrants for securing the presence of the witnesses, but they did not chose to appear and record their depositions and therefore, the prosecution filed an application before the court below so that the commission is to ensure the examination of the witnesses, list of whom was also provided along with the application, who are presently residing at Purkhoo Camp, Muthi Camp and Mishriwala, Jammu," the State said in the revision petition.

The counsel representing the accused had argued that the "delay tactics of the prosecution" has resulted in miscarriage of justice and prejudice to the accused. It was also submitted that only accused number 1 - Zia Mustafa - had been charged for commission of offence under Section 302 RPC (murder) whereas the rest of the accused have been charged for the offence under Section 30 of the Police Act.

Title: State of J&K through police station Zainapora vs Zia Mustafa and others

Citation: 2022 LiveLaw (JKL) 200

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