A Bench of Justices Abhay S. Oka and Ujjal Bhuyan dismissed the CBI’s appeals challenging the acquittal of seven men in the case registered in 1990 under the now-repealed Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), saying procedural safeguards were given a “complete go-bye” and truth and justice remained elusive, both for the accused and the victims.
The CBI said that Hilal Beg, a self-styled chief commander of a banned militant organisation Jammu and Kashmir Students Liberation Front (JKSLF), and other members of JKSLF, including accused Javed Shala, Tahir Ahmed Mir, Mushtaq Ahmed Sheikh, Mushtaq Ahmed Khan, Mohd Hussain Khan and Mohd Salim Zargar, entered into a conspiracy to kidnap Mushir-ul-Haq and others to strike terror in the minds of the public and compel the government to release their associates—Nissar Ahmed Jogi, Gulam Nabi Bhat and Fayyaz Ahmed Wani.
Haq and his personal secretary Abdul Gani were kidnapped by militants on April 6, 1990, to demand the release of their associates. As their demands were not met, the two hostages were killed on April 10, 1990, the CBI alleged.
However, the top court did not find any error or infirmity in the view taken by the Special Court in acquitting the accused. “This is not even a plausible view. No other view is possible. Consequently, there is no merit in the criminal appeal which is accordingly dismissed,” it said.
The legislature had reposed great faith in the fairness and uprightness of the higher police officials in the rank of SP and above while conferring the drastic power of recording confessional statements of the accused upon them making the same admissible in evidence subject to the fulfilment of the procedural safeguards, the Bench said.
“But we are afraid, in so far the present case is concerned, the procedural safeguards were given a complete go-bye. The Special Court has stopped short of observing that it was a case of abuse of power and authority,” the Bench said.
“It is indeed a sad reflection as to how investigation and trial unfolded in this case where truth and justice, both for the victims and the accused, remained elusive… It is not for nothing that such draconian provisions have since been repealed. We say this and no more,” the Bench said.
Noting that confessions should be recorded in a free atmosphere, it said recording of confessional statements in a heavily guarded BSF camp where the atmosphere for an accused would generally be daunting and overbearing cannot be said to be in a free atmosphere.
