The State Human Rights Commission (SHRC) has said that the former Tehsildar of south Kashmir’s Anantnag district had illegally passed a detention order against one accused person under section 107 of CrPC which only empowers the magistrate to issue a show-cause notice to the accused.
Chairperson of the Commission Justice (Retd) Bilal Nazki said, “The reply of respondent No 2 (former Anantnag Tehsildar) is sufficient to show that the complainant made by Rouf Ahmad Fazil to the respondent No 1 (Deputy Commissioner Anantnag ) and on the directions of DC, the Tehsildar asked the police to arrest the complainant.”
Nazki said that the Tehsildar has not at all mentioned that how he could direct the police to produce the complainant before him.
According to SHRC, a letter by the magistrate addressed to Additional Deputy Commissioner Anantnag reads, “On 19-12-2012 this office received information that a person namely Rouf Ahmad Fazil S/O Abdul Gani Fazil of Srinagar was beaten ruthlessly by the Manzoor Ahmad Bhat S/O Gull Mohammad Bhat of Khanabal inside the premises of DC office Anantnag.
The letter also states that in the meanwhile, ‘Magistrate’ was called by DC and asked to take cognizance of the case.
The SHRC further said. “He also submits that he took cognisance under section 107/151 of CrPC and passed an order whereby the complainant was asked to furnish a surety bond in order to keep and public tranquillity, but as the complainant failed to furnish the surety bond, therefore the complainant was detained.”
SHRC chairperson said, “Under the Section 151 of CrPC, the Section power is given to the police officer to arrest a person about whom the police officer knows that he has design to commit any cognisable offence.”
“In the present case, police officer had not arrested the complainant but magistrate had asked the police concerned to arrest and produce the complainant before him,” He said.
Nazki also said, “According to the magistrate, the offence had already been committed and one Rouf Ahmad Fazil was beaten, therefore the magistrate was exercising powers U/S 151, although he had not such powers.”
“Going by the chapters of section 107 and 151 of CrPC and also by the judgement of Supreme Court that section 107 only empowers the magistrate to issue show cause notice and at the time of issuing of show cause notice there is no question for demanding a bond as has been stated by the Tehsildar,” he said.
He also said, “In this case, the magistrate ordered the production of complainant illegally, then after his production he directed his remand to judicial custody because according to him, he failed to give a bond, this was also illegal because at this stage, only a show cause notice had to be given as to why a bond would not be demanded.”
Nazki said that in view of the matter, I have no doubt in mind that Tehsildar passed order illegally without jurisdiction and kept the complainant in wrongful custody.
“Before the final order is passed, a notice U/S 17 of J&K Protection of Human Rights Act 1997 be given to Tehsildar concerned to show-cause as to why appropriate recommendations be not made against him,” SHRC directed.