In a bizarre turn of events, a civil administrative official of the rank of Tehsildar (Executive Magistrate) has been summoned by a police officer of the rank of a Deputy Superintendent of Police (DSP), as a witness to record his statement into an investigation of a gunfight.
The gunfight had taken place on 4 April in the Hardmandguri village of Damhal Hanjipora (DH Pora) area Kulgam district, during which four militants of the Hizbul Mujahideen militant outfit were killed and civilian properties were damaged.
On 30 June, the Sub-Divisional Police Officer (SDPO), DH Pora, Ashiq Hussain, summoned the magistrate, Niyaz Ahmad Bhat, vide letter numbered SDPO/DHP/summon/20/3195-97 to record his statement, as a witness, before him under section 160 and 161 of the Code of Criminal Procedure. He was directed to present himself on 1 July at 11am.
The copy of the notice was sent to the Deputy Commissioner and the Senior Superintendent of Police in the district. However, Mr. Bhat has strongly protested the summon in a letter written to the SDPO.
“I have served in the most volatile district of Kashmir, Shopian, where gunfights are a norm and never ever have I received such summon,” Mr. Bhat protested, marking the communication to senior officials of the administration.
Mr. Bhat has stated that the police was not a competent authority to summon a magistrate “in a random manner”. In the scathing reply to the summon, Mr. Bhat has chided Mr. Hussain for having sent a summon without “any proper knowledge” and “wrongfully” terming him a “witness”.
The letter, number TDHP/OQ/20/63-70, also dated 30 June states: “The fact is that the undersigned was not communicated about the incident and neither was part of the encounter and not supposed to be so”.
He further writes that the jurisdiction of the incident belongs to three Executive Magistrates — in a hierarchical manner — “but for reasons known to you, you have summoned the undersigned by name to forcibly record a self statement”, adding that magistrates could not be summoned without prior permission of the District Magistrate (Commissioner).
Interestingly, Mr. Bhat also pointed out the SDPO’s error in invoking abrogated sections of the law. “Surprisingly, as per your communication, you are investigating the matter under J&K Code of Criminal Procedure, 1933, when the same has been repealed and now replaced by the Code of Criminal Procedure, 1973, through J&K reorganization act, 2019, implemented from 31 October last year,” the letter reads.
Mr. Bhat instead summoned the SDPO to his “court”, at 11am on 2 July to “understand the general issues under section 160 CrPc and to discuss other communications”. The letter was simultaneously sent to the DC and the Inspector General of Police (Kashmir), the Administrative Judge of the High Court of Jammu and Kashmir, and other officials.
However, neither the magistrate presented himself to the SDPO nor the latter to the former. In a letter in response to Mr. Bhat, SDPO Mr. Hussain on Thursday termed his letter of protest as “disoriented” and accused him of interfering with the investigation.
The SDPO has defended the summon citing “national security, justice and public security” and that “in the capacity of a magistrate, you are supposed to possess information of the incident that has happened in your jurisdiction”.
The letter by the SDPO, bearing serial number SDPO/DHP/Summon/20/3214-3221, states: “You could have got your statement recorded, of any nature, as per your information and based on facts rather than writing a disoriented letter and interfering in the process of investigation”.
Mr. Hussain has also justified the summons issued to the magistrate citing section 43 of the stringent anti-terror law, the Unlawful Activities Prevention Act, and asserted that he might send further such notices “in the interest of justice and public safety”.
The SSP Kulgam, meanwhile, said that he did not have any information regarding the issue.