Jammu and Kashmir High Court on Thursday reopened the case of Nadimarg massacre of 24 Kashmiri Pandits that was closed a decade ago.
Justice Sanjay Dhar was hearing the application filed by the prosecution seeking recall of order dated 21.12.2011 whereby the criminal revision petition was dismissed.
The massacres of 24 persons belonging to the minority community was carried out by “militants” at Nadimarg village in Shopian district in 2003.
A case (FIR No.24/2003 for offences under Sections 302, 450, 395, 307, 120-B, 326, 427 RPC, 7/27 Arms Act and Section 30 Police Act) was registered in Police Station, Zainapora in connection with massacre and investigations were taken up.
After investigation of the case, the challan was filed against seven accused persons initially before the Court of Principal Sessions Judge, Pulwama, that was later transferred to the Court of Principal Sessions Judge, Shopian, upon the creation of the said Court.
During the pendency of the trial of the case, the prosecution moved an application before the trial court seeking permission to examine material prosecution witnesses on commission, as according to the prosecution, these witnesses had migrated out of Kashmir valley and they were reluctant to depose before the trial court at Shopian in view of the threat perception.
The application was dismissed by the Principal Sessions Judge, Shopian in 2011 and the said dismissal order was challenged by the prosecution by way of Criminal Revision Petition before the High Court.
On 21.12.2011, the revision petition was dismissed by the High Court which the prosecution sought to be recalled by way of the instant application.
“For the foregoing reasons, the application of prosecution is allowed and order dated 21.12.2011 passed by this Court is recalled. The registry is directed to post the revision petition for rehearing on 15.09.2022”, Justice Dhar directed.
The prosecution counsel contended before the Court that the impugned order sought to be recalled has been passed without hearing the prosecution and without adverting to the merits of the case which he said is non-est in the eyes of law as a criminal revision petition cannot be dismissed for non-prosecution.
It is noted that the petitioner-state filed a petition seeking special leave to appeal against the judgment and order dated 26.02.2014 passed by the High Court.
The petition was filed by the petitioner-state before the High Court to challenge the proceedings from the date of framing of charge by the trial court and a direction was sought for fresh trial of the case or in the alternative to transfer the case to any Court of competent jurisdiction at Jammu so that statements of all the migrated witnesses available at Jammu are recorded in the said case without any fear.
The said petition came to be dismissed by this court in terms of order dated 26.02.2014 and the said order was challenged by the State before the Supreme Court by way of a special leave to appeal. The Supreme Court had granted liberty to prosecution to approach the High Court for recalling of the order impugned.
“As is clear from the afore-quoted order of the Supreme Court, the petitioner-State has been given liberty to file a recall application before this Court so that order dated 21.12.2011 may be recalled”, Court said the criminal revision petition against the impugned order passed by the Sessions Judge, Shopian, has been dismissed by this Court without hearing the petitioner-prosecution and without giving reasons for its dismissal.
“Therefore, the same can be recalled by this Court by treating the said order as a nullity being against the settled law that a criminal revision petition cannot be dismissed for non-prosecution. Even otherwise, the observations of the Supreme Court in the order dated 16.07.2015, clearly indicate that the order dismissing the revision petition deserves to be recalled so that the legality of the impugned order passed by the Principal Sessions Judge, Shopian, are determined after hearing both the parties”, Justice Dhar recorded.
