HC quashes FIR against Kuldip Sharma

Ahmedabad: In an embarrassing development for the state government, the Gujarat High Court quashed on Tuesday an FIR filed by CID (crime) against senior IPS officer Kuldip Sharma in connection with the 1984 Kutch encounter deaths.



On May 10, 1984, alleged smugglers Umarwali Mamad and Fakir Mamad Budha were killed in a police encounter and Jumawali Mamad and his son Ibrahim went missing. Jusab Juma Mamad Mokha from Paiya village complained to DGP SS Khandwawala that his father and other family members were killed by Sharma, who was, at the time, the superintendent of police of Kutch district. An FIR was lodged by CID (Crime) last month against Sharma and AS Bishnoi — who was a sub-inspector when the encounter took place — for murder and kidnapping. And the Gujarat police began investigating the case. Curiously, in 1984, an FIR had been filed against 10 policemen, including Bishnoi. The charges were dropped against nine, and Bishnoi was tried and acquitted in 2004.
Sharma approached the high court to challenge the FIR immediately after it was filed. His counsel SV Raju argued that when Sharma was posted in Kutch, the place was a haven for smugglers and anti-national elements, and that spying was rampant. Because Sharma took strict action against the anti-socials, they tried to implicate police personnel in false cases, the counsel argued. While the state government maintained that the FIR was filed in the wake of new evidence, Sharma’s counsel contended that a second FIR was not maintainable. Moreover, Sharma was posted outside Gujarat between 1995 and 1992, and therefore there was no chance of influencing witnesses.
After hearing the arguments, justice RH Shukla quashed the FIR and stopped the police investigation. The court observed that the state government as well as the complainant had not challenged the sessions court’s order during all these years.
While quashing the FIR, the court also considered a delay of 26 years in filing the FIR. Besides, the court raised an important question: when Bishnoi was acquitted in this case, and when Mokha did not challenge the order, “would it be justified to allow the investigation to proceed?” After a discussion, the court concluded that allowing the investigation to go on would be a futile exercise to trace any evidence in the case, though it was a cognizable and serious offence. But any probe in this case would be nothing but an attempt to bypass judicial proceedings.The HC also declined the state government’s plea to suspend the order for sometime so that it could approach the SC.

Stopping the state government to probe the 26-year old-encounter case against additional DGP Kuldip Sharma, the Gujarat High Court enumerated the instances where the state government and the private complainant failed to take any steps during all these years.
Justice RH Shukla has considered inaction on part of the private complainant and the state government a major ground for quashing the FIR against Sharma. The court has observed that a division bench had in 1985, while dealing with a habeas corpus petition for missing Jumavali Mamad and his son Ibrahim, given directions with regard to further probe by CID (crime) or CBI.
The high court has also noticed that the trial against sub-inspector AS Bishnoi resulted in acquittal, against which the state government preferred no appeal in the high court. A private complaint was filed by complainant Ibrahim Juma Mokha before a magisterial court in Bhuj against 10 policemen, but Sharma’s name was not mentioned by him at that stage.
The high court also referred to the judgment of acquittal, which had found lapse in the investigation like not recovering the revolver or rifle, not calling for ballistic expert reports. Moreover, the lower court also expressed that had the case been investigated by an investigating agency like CBI, it could have been different matter and therefore the benefit of doubt was given to Bishnoi.
Justice Shukla took notice of the behaviour on part of the private complainant during the trial was going on in the sessions court and after the pronouncement of judgment. “Assuming at that time the court has not taken the steps, he could have filed an application for bringing additional evidence on record or any other proceedings could have been initiated as may be advised, or at least he could have moved the high court when no appeal was preferred,” the high court observed.