Excelsior Correspondent
SRINAGAR, Apr 25: High Court has directed Principal Sessions Judge Kulgam to proceed in the trial of the accused involved in murder and other offences in the 10-year old case.
An FIR bearing No.96/2016 for offences under Section 147, 148, 149, 188, 336, 332, 188, 302, 307, 427, 436, 511 RPC, 7/27 Arms Act, 3 PSS Act, 3/2 PPD Act and 13 ULAP Act came to be registered with Police Station, Yaripora.
After investigation of the case, offences under Section 147, 148, 149, 188, 336, 332, 436, 511, 427 RPC, 3 PSS Act and 3/2 PPD Act were found established against accused Shiraz Ahmad Dar, Asif Ahmad Ganai, Zahoor Ahmad Nengroo, Towseef Ahamd Bhat, Sheikh Abdul Bari, Tariq Ahmad Parray, Khalid Hussain Malik, Siyar Ahmad Kumar, Sameer Ahmad Bhat and Sarjan Ahmad Wagay whereas offences under Section 302 RPC, 7/27 Arms Act and Section 13, 20, 38 ULAP Act, were found established against accused Farooq Ahmad Bhat, Hilal Ahmad Wani, Umar Majeed and Muzamil Manzoor.
After investigation of the case, offences other than offences under UAPA came to be established against 11 accused whereas four more accused offences under UAPA were also established. However, these four accused persons got killed in various encounters with the security forces while the investigation of the case was still in progress.
The investigating agency chose to file two separate charge sheets, one against 11 accused persons, who were alive, before the court of Principal Sessions, Judge, Kulgam and against these 11 persons offences under UAPA were not found established.
In respect of other four accused who got killed during investigation of the case, a separate charge sheet was filed before the court Special Judge (Designated under NIA) Kulgam after their death. Since these accused had died before the charge sheet could be filed against them, therefore, proceedings against them stood terminated as having abated.
The Principal Sessions Judge, Kulgam, vide his order dated 03.03.2025 observed that because all the offences including the offences under UAPA have been committed in the same transaction, therefore, in terms of Section 223 of the Cr. P. C, all the accused persons are required to be tried together. After holding so, he transferred the case to the Court of Special Judge (Designated under NIA), Kulgam.
The Special designated under NIA Act refused to entertain the challan as transferred by the Sessions court by observing that since there is no accused left to be tried separately warranting invocation of Section 220 of the Cr. P. C, the case is required to be tried by the Sessions Judge. Accordingly, the file was returned to the court of Principal Sessions Judge, Kulgam.
The Sessions Judge, Kulgam, after observing that there is no provision to transfer a criminal case by Additional Sessions Judge to the Court of Principal Sessions Judge. Thus, the chargesheet was again sent to the Court of Special Judge (Designated under NIA), Kulgam, for trial.
The Special Judge (Designated under NIA), Kulgam while refusing to retain the challan passed a detailed order observing therein that in terms of Section 20 of the National Investigation Agency Act he has the power to transfer cases to regular courts. Accordingly, in exercise of the power, he again transferred the case back to the Court of Principal Sessions Judge, Kulgam.
Justice Sanjay Dhar has held the decision of Special Judge under NIA act by transferring the matter to a regular criminal court i.e Sessions court as valid and directed the Sessions court to proceed in the cahllan further in accordance with law and the legal position.
“…Since the charge sheet against the accused who are alive does not disclose commission of offences under UAPA, therefore, Section 14 of the NIA Act cannot be invoked by the Special Judge for retaining the challan with it. The only option available with the Special Judge (Designated under NIA), in these circumstances, was to exercise its power of transfer in terms of Section 20 of the NIA Act, which the Judge rightly exercised by passing a detailed and lucid order dated 12.03.2026”, Justice Dhar said.
The court added that the Principal Sessions Judge, Kulgam, has mis-appreciated the whole facts and the legal position which has resulted in tossing of the case from one court to another court, as a consequence whereof, even the inquiry of the case has not been completed despite the challan having been presented about more than a year before.
Follow our WhatsApp channel
