DB set-aside the order of NIA Court discharing the accused police cop

A Division Bench of Jammu & Kashmir and Ladakh High Court Comprising Justice Sanjeev Kumar and Justice Rajesh Sekri set-aside the order of NIA Court whereby NIA Court discharged one Jaffer Hussain discharged and directed Trial Court to frame charge against the respondent and proceed with the trial in accordance with law.


This appeal in terms of Section 21 of National Investigation Agency Act 2008 (NIA Act, for short), read with Section 482 of the Code of Criminal Procedure, 1973 (for short, Cr. P.C.), read with Article 227 of the Constitution of India, has been directed against order, propounded by the Court of Special Judge, NIA (3 rd Additional Sessions Judge), J&K at Jammu (hereinafter referred to as the trial court), in case RC-08/2019/NIA/JMU dated 02.11.2019, vide which, respondent has been discharged for offences under Section 120-B read with Section 392 of Ranbir Penal Code, 1989 (RPC, for brevity) read with Sections 18, 39 & 40 of the Unlawful Activities (Prevention) Act, 1987 [UA(P) Act, for short].


The case of the appellant/prosecution in the trial court is that on 08.03.2019 at about 2030 hours, Police Station, Kishtwar received a source information that some unknown armed terrorists had barged into the rented room of HC Daleep Singh, who happened to be the Incharge of escort party of Deputy Commissioner, Kishtwar situate at Asrarabad, Kishtwar at 1930 hours and snatched his service weapon i.e. AK-47 rifle along with three magazines and 90 live cartridges at gun point and fled away. According to the investigating agency, the terrorists had committed this act in furtherance of criminal intention to revive militancy and create terror among the people of the area thereby threatening the unity, integrity and sovereignty of India. Accordingly, an FIR No. 31 of 2019 dated 08.03.2019 came to be registered by Police Station, Kishtwar for offences under Section 392 RPC, 7/25/30 of Arms Act and Sections 16/18/20/23 of UA(P) Act and investigation came into vogue. Subsequently, in compliance to order No. 11011/55/2019/NIA dated 01.11.2019 issued by the Ministry of Home Affairs, Government of India, the case was assigned to NIA under the provisions of Section 6 of the NIA Act. In compliance to the afore-said order, NIA re-registered the case as RC08/2019/NIA/JMU on 02.11.2019 for same sections and commenced the investigation. On conclusion of the investigation, NIA filed a final report against six (06) accused persons including Osama Bin Javed @ Osama @ Usma, Haroon Abbas Wani, Zahid Hussain, Tanveer Ahmed Malik, Taraq Hussain Giri and Jaffar Hussain (respondent-herein) and some other accused persons in the trial court on 22.05.2021 for the alleged commission of offence punishable under Sections 120-B & 392 RPC, 16/18/19/20/23/38/39 & 40 of UA(P) Act and 07/25/30 of Arms Act and further investigation of the case was kept open.


DB after hearing ASGI Vishal Sharma for the NIA whereas whereas Adv Intikhab H. Shah for the accused observed that turning to the present case, the admitted position of fact on the record is that respondent was an acquaintance of accused Osama Bin Javed and it is also an admitted fact that Maruti Alto Car of the respondent has been used in the commission of the offence. According to the respondent, his vehicle was forcibly taken away by the militants under threat perception and at the gun point and therefore, he cannot be held liable, since he had not voluntarily handed over keys of his car to the militants. Be that as it may, the respondent happened to be a police official and in such a situation, the respondent immediately after the episode, was expected to inform the police about the whole incident so as to facilitate the police agency to intercept his car and prevent the commission of crime. Respondent in the present case not only failed to inform the police, but also misled, misinformed and misdirected the police agency, purportedly in furtherance of intention to screen the militants. It is significant to underline that respondent not only lied to the MTO, MT clerk and Dy.SP/DAR of DPL, Kishtwar but he also projected a false story and furnished wrong information to his senior officials including Additional Superintendent of Police, Kishtwar and Senior Superintendent of Police Kishtwar and that too, on repeated questioning and at different points of time. There is no denying the fact that respondent intentionally furnished wrong information to the police and concocted a false story and his actions led the terrorists to snatch the service rifle i.e. AK-47 along with three magazines and 90 live cartridges from HC-Daleep Singh and escaped afterwards. He constantly concealed vital information from the District Police of Kishtwar and had he furnished the correct information to the police immediately after the occurrence, it would have helped the District Police in pre-empting the incident of weapon snatching or the initial investigation immediately proceeding the said incident of weapon looting. It is also pertinent to mention that there is copious documentary as well as ocular evidence in the shape of statement of Sajjad Hussain Bhat, Sarjeet Singh, Gopi Nath, Firdous Ahmed and Tilak Raj to prove the complicity of the respondent. Thus considered, the circumstances surrounding the afore-narrated episode are sufficient to indicate that respondent had prior knowledge about the incident of weapon snatching and as held by Hon’ble Supreme Court in Rajiv Kumar’s case (Supra), the conduct of the respondent after the incident of not informing the police immediately after the occurrence gives rise to a grave suspicion that prima facie respondent connived with the militants/accused on the spot to facilitate the commission of the crime.


DB observed that trial Court, by reading in between the lines, has erred in assuming that respondent had disclosed incorrect registration number of his vehicle to the police authorities out of fear only. The observation of learned trial court that respondent must have disclosed wrong registration number of his vehicle for the reason that he might be suspected to be an ally of the categorized terrorists, is totally misconceived, as learned trial court has no where discussed as to what prevented the respondent from furnishing accurate information about the incident to his superior officers immediately proceeding the incident.


With these observations, Division Bench set-aside the order of trial Court and directed trial court to frame charge against the respondent and proceed with the trial in accordance with law. JNF