Custodial Death Probe: HC Says No To Sitting Judge2 October 2011
Srinagar: Much before the judicial inquiry into the killing of National Conference worker Syed Muhammad Yousuf would take off, the Jammu and Kashmir High Court has turned down the request of state government to spare a sitting judge for the purpose. Official sources told Rising Kashmir that Chief Justice of Jammu and Kashmir High Court F M Kalifullah has conveyed to the state government that it was not within his competence to nominate a sitting judge to hold the inquiry into the custodial killing of the NC worker. The government has been told that in view of Supreme Court ruling the State High Court does not have competence to do the same. “It is up to Supreme Court and then the President of India to do so” the state government has been told. It could not be immediately confirmed whether the state government has received the communication in writing. The Chief Justice is away in Chennai in connection with marriage of his son. The state government had sent a formal request to Chief Justice to spare a sitting judge to inquire into the killing in view of hue and cry raised in the political circles. Finance Minister A R Rather also told a press conference that the judicial inquiry by a sitting judge would bring out everything. Chief Minister Omar Abdullah, Law Minister Ali Mohammad Sagar, Law Secretary G H Tantry and Senior Additional Advocate General Ali Mohammad Magray returned to Srinagar today only after attending the marriage ceremony in Chennai. It is worth mentioning here that former Chief Justice of Orissa High Court Justice (retd) Bilal Nazki had in an interview to Rising Kashmir on Saturday said that sitting judge could not be appointed by High Court or State government.“Government cannot appoint sitting HC judge to a probe panel. A sitting judge can only be appointed by President to the probe panel after following proper procedure. There is a Supreme Court judgment that sitting judges should not go for probes because they have their own jobs. If somebody wants, then that has to be cleared first by Chief Justice of High Court, Chief Justice of India and Union Cabinet, which is almost impossible”, Justice (R) Nazki had said. Referring to government decision to appoint a sitting judge to probe the custodial death of NC leader, he said “They (Govt.) have no power do so. They can’t appoint a sitting judge. It has to be done by the President of India. They can only make a request.” Maintaining that law in this regard is clear, Nazki said, “Law on it is absolutely clear. You can see the constitutional provision about the appointment of judges. I think it is Section 224 or something, where it talks about the duties of a HC or SC judge. So he-she can’t be appointed to probe panel other than by President of India”.