Inquiry by sitting judge or retired judge or CBI?

Khursheed, Omar, Kalifullah, Kapadia weighing options of probe into Yousuf episode

Ahmed Ali Fayyaz

SRINAGAR, Oct 8: Even as the final post mortem report is still awaited and a District Magistrate has started inquest proceedings to ascertain nature of the death, all three options are being weighed between Srinagar and Delhi with regard to inquiry into the death of the National Conference (NC) activist Syed Mohammad Yousuf.

Syed Yousuf had died in controversial circumstances on September 30^th, hours after he was allegedly found involved in a political pay-off and handed over by Chief Minister Omar Abdullah to IG Crime alongwith two complainants of the ruling party. Post mortem was conducted by a team of doctors of Government Medical College on the same day and an interim report observed that there were no external or internal injuries on the dead body. Tissues and organs are currently under analysis with the team of doctors at GMC Srinagar and with forensic science experts at FSL Srinagar.

Though reports circulated in local media said that an interim report from FSL had been received by the government, authoritative sources at Forensic Medicine Department of GMC Srinagar as well as FSL told Early Times that no such report had been compiled or submitted till late tonight. Sources said that FSL could send its report to Principal GMC Srinagar and the final medico-legal opinion would be ascertained in view of both the observations and thereafter submitted to Additional District Magistrate Srinagar, Mohammad Akbar Ganai, who was holding the inquest proceedings under Section 176 CrPC.

According to these sources, and also confirmed by DGP Kuldeep Khoda to Early Times, FIR could not be filed until the final post mortem report was available for the purpose of learning whether Yousuf’s death was homicidal, suicidal or accidental in nature. It would determine the whole course of investigation, whether by Executive Police, Crime Branch, CBI, executive magistrate or judicial magistrate.

Yousuf’s death has raised a political storm amid allegations and speculations from PDP, some other opposition parties and media circles, that the NC activist had been physically tortured at CM’s residential office after he admitted to have collected Rs 34 Lakh from complainant Abdul Salam Rishi for making him MLC and Rs 84 Lakh from complainant Mohammad Yousuf Bhat of Ganderbal for making him MLC as well as Minister of State for R&B. PDP has been strongly demanding resignation of Chief Minister, MoS Home Nasir Aslam Wani and union Minister Dr Farooq Abdullah besides a judicial or CBI inquiry.

On September 30^th itself, Chief Minister announced a judicial inquiry. He declared that his government had requisitioned the services of a sitting judge of J&K High Court for this purpose and the demand was under consideration of the Chief Justice. However, in the wake of technical hitches surfacing one after another, Chief Minister took up the matter with the union government.

Well-placed authoritative sources revealed to this newspaper that Chief Minister sought the intervention of the union Minister of Law and Justice, Salman Khursheed, to clear the decks for the judicial inquiry. It has been pointed out that in November, 2006, a Division Bench of Supreme Court has proscribed deployment of sitting High Court judges as Commissions throughout the country. The order had been pronounced by Justice Arijit Pasayat and Justice S H Kapadia (now Chief Justice) on 27-11-2006 in a petition titled University of Kerala v/s Council of Principals of Colleges Kerala and others.

The operative part of the order reads:

“Mr Gopal Subramaniam, learned additional Solicitor General of India states that in terms of the previous order, dated 20-11-2006, information was sought from various states as to in how many cases sitting judges have been appointed as Commissions. On the face of the judgment of this court in T. Fenn Walter v/s Union of India, it is stated that, unfortunately, none of the states have responded to the queries raised about the number of sitting judges who have been appointed as Commissions; and, whether such appointments were made keeping in view the principles laid down in T. Fenn Walter case.

“The order dated 20-11-2006 was passed before the learned additional Solicitor General had submitted that notwithstanding the judgment of this court, in petty and routine matters, sitting judges are being appointed as Commissions. In view of this, we direct that in no case a sitting judge of any High Court shall continue as the Commission. This order shall not, however, operate in cases where the inquiry is at the fag end i.e. only where the report is to be submitted”.

Sources said that legal experts from Srinagar to New Delhi were exploring as to how CJ of J&K High Court could spare a sitting High Court judge for the inquiry. According to these sources, the matter was under active consideration and discussion between Omar Abdullah, Salman Khursheed, CJ of J&K High Court Mr Justice FM Kalifullah and CJ of Supreme Court of India Mr Justice S H Kapadia.

According to these sources, it would become clear in next two or three days whether a sitting High Court judge could be made available “as a special arrangement” or the inquiry would be assigned to any of the 20-odd retired High Court judges in the state. Sources said that the demand of inquiry by CBI, that had been already advanced by deceased Syed Yousuf’s family and seconded by PDP and BJP, was under consideration of the authorities as the third option.

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