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Hans Raj Parihar & Ors. vs State Of J&K; & Ors. on 29 January, 2018

1. The Applicants- Hans Raj Parihar and others have filed three criminal
transfer applications under Section 526 of the Code of Criminal
Procedure, Svt. 1989, for seeking transfer of the criminal challan/cases
titled State V/S Hans Raj Parihar and others from the Sessions Courts
situated at Kashmir province to any Courts of competent jurisdiction at

2. In these petitions, it has been stated that they are facing Trial along with
other accused for offences under section 364, 302 and 120-B RPC, in two
cases before Sessions Judge, Srinagar and one before Sessions Court at
Bandipur, Kashmir .

3. It is stated in Cr.T.A No.30/2016 that the applicants herein along with the
proforma-Non-applicants who belong to the J&K Police Department, are
facing criminal trial for the charge under Sections 302, 364 and 120-B,
RPC in the case titled State V/S Hans Raj Parihar & Ors., being File No.
67/B and 53/B /Sessions, in the Court of learned Sessions Judge,
Bandipur . The aforesaid Criminal Challan owes its genesis to the FIR
No. 52/2006 of P/S Sumbal registered on 14.3.2006, investigation
whereof culminated into the filing of the charge sheet by the Police in the

Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 1 of 13
Court of learned CJM Sopoor, who committed them to the Court of
Sessions Bandipur, where the learned Sessions Judge, framed charge
against them and directed the prosecution to lead evidence. The
prosecution is leading evidence and is still in the process of leading the
evidence for last ten years and the applicants continue to be in the judicial
lock up for last more than ten years now and they are languishing in the
jail. It is further stated that after the last date of hearing held in the month
of June, 2016, the next date of hearing was fixed on 9 th July, 2016 by the
trial Court for recording the statements of prosecution witnesses , but in
view of the present continuous turmoil of protests, curfew, shut-down and
Hartals for last four months, following the killing of the militant
commander Burhan Wani, in Kashmir, no next date has been fixed nor
conveyed in as much as the applicants / under trials have not been taken
to the trial court in the said criminal case. That there are seven accused
persons, including the applicants herein are facing the trial in the
aforesaid case, however, the remaining two accused persons namely
Farooq Ahmad Gudoo and Farooq Ahmad Padder (Accused no. 3 and 4)
have not been able to join as Applicants-parties to the present Transfer
Application, owing to the present turmoil going on in Kashmir, as such,
they have been accordingly impleaded/arrayed as Proforma Non-
Applicants 2 and 3, to the present Transfer Application. It is further stated
that the present Criminal Transfer Application is being filed by the
petitioners herein through their next friends (excepting the petitioner no.
4, who belongs to Ganderbal), as all the petitioners are interested parties
and are presently lodged in Judicial Custody at Central Jail, Srinagar, as
accused, in connection with the trial of the aforesaid criminal case.
Applicant had got their Vakalatnama attested from the Jail Authorities but
the present Transfer Application prepared thereafter could not be got
attested because of the present situation, hence the same is signed and
affidavits filed in support thereof by their next friends/wives, excepting

Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 2 of 13
the Non-Applicant No. 4, as no family member from his family has been
in a position to travel to Jammu from Ganderbal, because of the present
protests prevailing in Kashmir. That though the Applicant has been
guaranteed a fair, expeditious and speedy trial under Article 21 of the
Constitution of India but in the case of the Applicant the said
Constitutional Guarantee has remained a dream only which is self-evident
from the fact that it is almost ten years since the charge was framed by the
trial court and the prosecution is yet to lead and complete its evidence. It
is further stated that the frequent and long spells of protests, Bandhs and
Hartals in Kashmir in the years 2010, 2016 and floods in September,
2014 coupled with the strikes of the Advocates and frequent suspension
of work by the Bar and the lackadaisical approach of the prosecution and
too much leniency and indulgence on the part of the trial court favouring
the prosecution, has adversely affected the progress and speed of the trial,
which tantamount to the denial of the right of expeditious and speedy trial
of the Applicants. Left at this speed, the trial is not reasonably to
conclude in next another one more decade and the applicants are suffering
the incarceration in the jail. That it has taken the prosecution almost four
years to complete the examination of the PWs-Uttam Chand and Mohd.
Asgar Bhat, because of its casual approach and the dilly-dallying tactics
of the prosecution witness. It is further stated that hostile and surcharged
local atmosphere in entire Kashmir against the applicants, because of
being Police Officers/Police Personnel, the Media Hype and Media Trial
of the case held as Fake Encounter Case, coupled with the hostility of the
local Bar against the Applicants and the oral Resolution of the local Bar
not to conduct the case of the accused persons, compelling the Applicants
especially the Applicants no. 1 and 2 to engage their Advocates from
Jammu for conduct of their defence, undoubtedly establishes the fact that
fair and impartial inquiry/trial cannot be held in the criminal court of
learned Sessions Judge, Srinagar, subordinate to this Hon’ble Court. That

Cr.T.A. No.28/2016 c/w CR.TA Nos.29/2016 & 30/2016 and connected matters Page 3 of 13
the applicants herein have lost the hope and faith of getting a fair,
expeditious and speedy trial, as shall be borne out from the interim orders
of the record of the trial court for the last ten years especially from May,
2007 to June, 2016.

Source: IK

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Hans Raj Parihar & Ors. vs State Of J&K; & Ors. on 29 January, 2018


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