Srinagar, Jan 16: The Jammu and Kashmir High Court has stayed the re-investigation into the alleged Kunan-Poshpora mass rape case of 1991 on a petition by the Army and posted the case for hearing after two weeks. The court also issued a notice to the state government for filing its response within two weeks.
"Till next date, subject to objections of the other side, the impugned order dated 18-6-2013 and 8-8-2014 shall stay," Justice Tashi Rabstan said in an order passed yesterday on a petition filed by the Army. A judicial magistrate in Kupwara had directed re-investigation of allegations that soldiers of Army's 4-Rajputana Rifles had raped over 40 women in Kunan and Poshpora villages during the intervening night of February 23-24 in 1991.
The court of Judicial Magistrate Kupwara in June 2013 had ordered that a police officer not below the rank of Senior Superintendent of Police should re-investigate the case within three months. The Principal Sessions Judge, Kupwara, had dismissed in August last year a revision petition by the Army against the order of the Judicial Magistrate.
The Judicial Magistrate's order for reinvestigation came after the victims filed a protest petition against the closure report filed by police. In its petition, the Army has stated an officer is empowered and authorised to examine, enquire and try its personnel "subject to Army Act" under his control in respect of the allegation attributed to them while on "Active Service" in J&K.
"What is the course open to a magistrate when a closure report under section 173 of CrPC is laid before it by SHO in-charge of a police station. Whether law permits the magistrate to record evidence and thereafter direct further investigation," the army said in the petition.
"Whether a judicial magistrate at the time of consideration of final police report or complaint can rely upon unaccepted findings/observations of State Human Rights Commission to decide the further course of action in the complaint police/report; Whether or not the findings of the Commission in evidence and whether magistrate can rely thereon to decide further course of action while dealing with proceedings on closure report," it said.
The SIT probing the case had pleaded before the High Court in November last year that the Union of India be directed to provide information about 125 Army personnel, who conducted search operation on the night when the alleged mass rape took place.