Chief judicial magistrate Srinagar, Yashpal Bourney, ordered the transfer of the case, related to the killing of 16-year-old Zahid Farooq allegedly by BSF commandant RK Birdhi and constable Lakhvinder Kumar.
Upholding the BSF plea that its Commandant and constable accused of killing a teenaged boy in unprovoked firing were on "active duty", a local court today transferred the case to General Security Forces Court (GSFC).
Chief judicial magistrate (CJM) Srinagar Yashpal Bourney ordered the transfer of the case, related to the killing of 16-year-old Zahid Farooq allegedly by BSF commandant RK Birdhi and constable Lakhvinder Kumar in Nishat area of the city in February this year, to GSFC.
In view of the notification issued by the Central government with regard to disturbed areas in the country, including Jammu and Kashmir, the security forces are to be treated as being on active duty in any part of these states, Bourney said while announcing the order.
"The notification is for a period of three years and the instant occurence has taken place within that period. This court has no option but to transfer the case to General Security Forces Court," the judge said.
Special public prosecutor AA Teli said he will go through the entire order before a decision is taken on challenging it in a superior court.
"We will have to go through the entire order but the judge has taken only the notification issued by the Centre into account while disposing of the application. Most probably, we will go for an appeal," he said.
Farooq was killed in a firing incident by the troops of 68 Battalion BSF on February 5 this year. Although mystery surrounded the killing of the boy initially, Birdhi and Kumar emerged as suspects from the investigations conducted by the police and an internal inquiry by BSF.
While Kumar was handed over to police in February, Birdhi surrendered before the police in March this year.
In April, BSF moved an application seeking transfer of the case to GSFC under Section 80 of the BSF Act claiming that the accused personnel were on active duty when the incident took place.
The special public prosecutor had opposed the transfer saying that killing someone in unprovoked firing cannot be considered as active duty. He had also contended that the Unit commanded by Birdhi was operating in Gulmarg area of Baramulla district and were not required in the city.
The court, however, rejected the plea of the BSF counsel M Fazili seeking immediate custody of the accused, who were present in the court.
"You can take the custody of the accused anytime after they complete the required formalities at the place of their lodgement (Central Jail) till today," Bourney said.
The court had twice deferred announcing the orders on November 16 and November 23.
The killing of Zahid Farooq had led to widespread protests and five days of shutdown in the Valley.
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