Srinagar: The ‘clean chit’ given by the Jammu and Kashmir Special Investigation Team (SIT) against the government forces involved in the alleged gunfight of Hyderpora that led to the killing of three civilians, is against the natural justice of law, experts said.
Talking to The Kashmir Walla, many legal experts said that as per the Indian constitution the accused is not entitled to hold any position in the investigation.
Sheikh Showkat, a renowned Professor of International Law and Human Rights, said that the SIT probe into Hyderpora killings “goes against the basic principle of natural justice”.
“Since the accusation into these killings involves police, therefore a probe should have been done by other agencies. It goes against the basic principle of natural justice, if you are the judge of your own investigation,” said Showkat.
He added that there are two basic laws enshrined into an Indian law: “No one can be judged for his own cause. No one can be condemned unheard.”
Showkat said that the threat by the police for action against people questioning the SIT probe is also against the fundamental right of freedom of expression and freedom of right to information.
“Both the rights are a part of Article 19 of the Indian constitution. As per the law one cannot be booked for expressing dissent to some verdict or judgment,” he said.
On 15 November, an alleged gunfight took place in Hyderpora area of Srinagar in which three civilians Muhammad Altaf Bhat, a resident of Barazulla, Dr Mudasir Gul a resident of Budgam and Amir Ahmad Magray, a resident of Ramban was killed.
The police said that a “militant” who police claimed was a foreigner named Bilal Bhai alias Haidar was also killed in the gunfight. However, the families of Bhat and Gul raised questions about the gunfight and demanded an independent probe into the incident.
Earlier this week the SIT headed by Deputy Inspector General of Police [DIG], Central Kashmir Sujit Kumar Singh exonerated the government forces of any foul play in the Hyderpora killings, claiming that one of the civilian-Mudasir Gul- was killed by a “foreign militant Bilal bhai” while the other- Mohammad Altaf Bhat- died after he was used as a “human shield”.
The SIT also claimed that the third civilian Amir Ahmad Magray was a militant associate and was killed in a cross-firing while he tried to escape from the spot.
However, the SIT probe was not well received by the victims of the families and political parties who accused the police of “covering up their crime” and demanded a judicial probe into the incident.
The accusation evoked a sharp reaction from the police department. The SIT threatened “panel action” against those critical of the police investigation.
Addressing a press conference, Inspector General of Police (IGP) Vijay Kumar said the Hyderpora operation was “transparent” and asked political leaders questioning the “clean chit” given to the forces to submit evidence to investigation panels.
“In a democratic set up, media, politicians or even family have the right to not agree with the investigation and demand a higher-level probe, like from the National Investigation Agency, Central Bureau of Investigation or high court. We have no problem. But whether any investigation is right or wrong can only be decided by the court,” Kumar told the media while addressing a year-end press conference.
Former Deputy Inspector General of Police (DIG) Ashkoor Ahmed Wani told The Kashmir Walla that police should have waited for the outcome of the magisterial probe before making their SIT report public.
“Though the police are not debarred from conducting its own investigation, I think they should not have publicized the SIT report before the magisterial probe. They have complicated the civilian inquiry,” Wani said.
Wani said now after the SIT report if the magisterial probe would toe the same line it would raise the question of “prejudice”.
“They (police) have spoiled the show. Two different inquiries cannot toe the same line,” he said. “A judicial or magisterial probe is always superior to a police probe”.
On 19 November, the government had ordered a magisterial probe into the alleged gunfight, however, more than one month has passed, the government has failed to finalize the report as families of the victims await justice.
Justice (retired) Bilal Nazki terming the probe conducted by the accused party itself a “big debate” in the eyes of law said that the involvement of police is required in all the investigation, “irrespective of which agency is carrying it out.”
“Even the judicial or magisterial probe requires the involvement of the police. However, whether an accused can be an investigator of his own case is a big debate,” Nazki said.
Nazki said in the past police have booked their own people when found guilty.
“In the case of Jaleel Andrabi it was SSP Srinagar who conducted the inquiry. If there is a proper system at place, an independent inquiry can be conducted,” Nazki said.
Andrabi, a prominent Kashmiri human rights lawyer, was subject to the custodial killing. On December 26, 2000, the police filed a charge sheet in the case against Major Avtar Singh.
Nazki, who was also the chairperson of the State Human Rights Commission (SHRC), said that the SIT probe is not binding and can be challenged in the court.
“The court has the authority to either accept the SIT probe or reject it,” he said.