Srinagar: A local court in Jammu and Kashmir has severely criticised the investigating officer of a case registered under the draconian Unlawful Activities (Prevention) Act [UAPA] for being “lethargic and sluggish” and ordering a departmental enquiry against him, prompting legal experts to say this case is representative of the way in which the law is being misused.
The judge expressed astonishment that a person was chargesheeted in the case by relying on a statement recorded by a prosecution witness in another case, apart from finding several other faults in the investigation. He also discharged three of the ten accused persons before the trial in the case began.
In its order, the court of the third additional sessions judge, Jammu, which is one of the designated courts for UAPA cases in J&K, questioned how the investigating officer used a statement recorded in another case (FIR No.229/2019, P/S Dachhan) against Zahoor Ahmad, who was chargesheeted by the police for being an overground worker of militants in the present case.
Ahmad and others were arrested in 2020 by the Kishtwar police on charges of being overground workers of the militant outfit Hizb-ul-Mujahideen and providing logistical support, shelter, weapons and information to its militants, including Jahangir Saroori, who is one of the most-wanted militant commanders in J&K.
“I am just astonished to see that how the investigating officer of this case [Sunny Gupta, a deputy superintendent of police (DySP) rank officer] has tried to take the benefit of the statement of a witness which was recorded during the investigation of some other case and he has appended the photostat copy of the said statement with an intention to give strength to the present case for the charges levelled against the accused Zahoor Ahmed,” reads the order.
Judge Sunit Gupta observed that there was no other evidence on file or a statement from any of the prosecution witnesses which connects the accused with the commission of any kind of offence in the present chargesheet.
Two others also discharged
Apart from Zahoor, the court also discharged two other accused – Bashir Ahmed and Yassir Hussain – while ordering framing of charges against seven others accused in the case.
In his observations, judge Gupta said that one of the prosecution witnesses relied on co-accused Yassir Hussain’s claim that Bashir Ahmed had accompanied Jahangir Saroori.
“A big question has been raised that if any categorized militant has called any person, whether that particular person can afford to deny it and if he met the categorized militant involvement (sic) and accompanied him under his threat/directions to some particular destiny, whether he has committed any offence? I supposed no kind of offence can be attributed to the accused Bashir Ahmed under the given set of evidence. Hence, the accused Bashir Ahmed is discharged from this charge sheet (sic),” reads the order.
The other person who was discharged, Yassir Hussain, was accused of providing food to militant commander Jehangir Saroori on the basis of a statement made by one of the prosecution witnesses. The court observed that merely providing food to a militant does not fall under the ambit of activities under Section 13 (punishment for unlawful activities) of UAPA.
More questions about investigation
The court also questions why the investigating officer did not seek custody of Muhammad Ramzan, one of the accused in the present case, despite knowing that he was in judicial custody when the FIR was registered.
The judge said Ramzan was in judicial custody in another case (FIR 268/2019 of P/S Kishtwar), in which the investigation was also conducted by the same officer, Sunny Gupta. The court said, therefore, the officer would have been aware of this fact but did not seek custody. “No kind of remand either police or judicial was ever obtained in the present case,” the judge observed.
Recommends departmental enquiry against DySP
The court pulled up the investigating officer, DySP (headquarters) Kishtwar, Sunny Gupta, for conducting the investigation in a “perfunctory” and “unprofessional” manner.
“The quality of the investigation does nowhere speaks about the fact that the investigation in the present case has been conducted by gazetted officer with the rank of DySP of police department (sic),” the judge recorded.
From the perusal of the file, the court felt that at the time the FIR was registered, a number of persons were roped in but the officer conducted the investigation in “such a lethargic and sluggish manner” that he had not taken even a “little pain to search for evidence”.
The judge said “sensitive cases” such as the present one, “which are connected with the sovereignty and unity of the nation” have been assigned to senior police officers with the rank of DySP because “a better investigation can be expected from them”.
“But when we look into the investigation in the present case, we find that a much better investigation could be conducted by even a head constable in comparison to the investigation conducted in the present case by Mr.Sunny Gupta, DySP,” the judge said.
The court went on to state that the investigating officer only acted as a “spectator” and that the statements of only some of the witnesses were recorded either Under Section 164 of the Code of Criminal Procedure, thereby making it admissible in court.
The investigating officer also did not bother to seize any of the accused’s mobile phones or collect their call data records to establish their links with categorised terrorists, the judge said.
The judge ordered a departmental enquiry against the officer by the inspector general of police (Jammu zone), saying he should be asked “why and under what circumstances” he had not collected real evidence in the cases and ignored the important aspects of the case.
“He should also be asked that how and under what circumstances he had implicated and charge sheeted the accused Zahoor Ahmed, against whom no evidence was available with him even at the time of registration of FIR as well as, at the time when the charge sheet presented against him and other accused persons,” judge Gupta said.
‘Shows misuse of UAPA’
Terming the judge’s observations in the case as a matter of concern, legal experts told The Wire it is representative of the slipshod investigation into UAPA cases in J&K.
“If they have relied on the statement recorded in another case, it is really a matter of concern. The order passed by the learned judge is appropriate. We have to always remember that under the law, an investigating officer is the first judge of a case. He has to be impartial and dispassionate,” former high court judge, and member parliament from Anantnag, Hasnain Masoodi told The Wire.
Advocate Irfan Hafiz Lone said UAPA is being misused in J&K. “In one case, a person was booked under UAPA and couldn’t get bail for 180 days. But when the chargesheet was filed, the offences under UAPA were dropped against him,” he said.
“The court has itself expressed astonishment over the fact that a statement recorded in some other case was made the basis of a chargesheet against one of the accused in the instant case,” he said.
Repeated attempts to seek the J&K police’s reaction to the court order proved futile, as SSP (Kishtwar) Shafqat Hussain did not respond to repeated calls from this reporter.