The Supreme Court today expressed its displeasure that more than the decade-old encounter killings case in Pathribal,Jammu and Kashmir,was yet to reach the trial stage due to Army’s perceived defiance against prosecution of its personnel supposedly enjoying immunity under the Armed Forces Special Powers Act.
Irked by Army’s stance that its officials cannot be prosecuted for alleged fake encounter killings in Jammu and Kashmir and Assam without prior sanction,the Court today sought responses from the Union Home and Defence Ministries.
A bench of justices B S Chauhan and Swatanter Kumar issued notices to the two ministries after Additonal Solicitor General P P Malhotra,while denying the fake encounters at Pathribal and Assam,repeatedly insisted that CBI cannot prosecute them without the central government’s prior permission.
Malhotra’s defence was countered by another Solicitor General Harin Rawal,appearing for CBI,who said “they (the Army) want to bury the case.”
The apex court pointedly queried Malhotra whether the Army was willing to initiate “court martial” proceedings against the accused army officials but the latter sought time to “seek instructions” from the government on the issue.
Seven people were gunned down by army personnel on March 25,2000,at Pathribal in South Kashmir and they were branded as terrorists of Lashker-e-Taiba group who were responsible for the gunning down of 36 Sikhs at Chittisingpura in the same district on the intervening night of March 19-20,2000.
In another incident in 1996,about seven men were shot dead by the Army in an alleged fake encounter with Bodo militants.
The bench is examining CBI’s plea for prosecution of these Army personnel.
During the two-hour-long hearing,the apex court expressed displeasure over the delay in trial on account of the Army’s stance.
The bench brushed aside Malhotra’s argument that prior sanction was a prerequisite for prosecuting the army officials as they enjoyed immunity under Sections 6 and 7 of the Army Act.
Malhotra submitted the safeguard was evolved as they were working in the “disturbed areas under peculiar circumstances.”
The bench then asked Malhotra whether the Army was willing to “initiate court martial proceedings against the officials.”
But the ASG insisted that even for court martial proceedings prior permission was required.
However,the submission failed to convince the bench which remarked “if that is the case,no army personnel can be prosecuted. Give us even one instance of the Army seeking prior sanction of the central government for court martial proceedings.
“Have you ever taken permission of the central government even for court martial proceedings against a jawan? Show us even one instance,then we will accept your argument,” the bench said.
The apex court said the Army cannot play around with the court by seeking immunity.
“The matter is pending for the past 10 years. How do you expect the citizens of India to wait? You (army) create a situation where no one is able to take a decision. You can’t play around with the court,” the bench told Malhotra. Counsel Ashok Bhan,appearing for CBI in the Pathribal encounter case,said no immunity existed for the Army personnel involved in fake encounter killings.
Bhan read out from Section 125 of the Army Act to show that no immunity existed for the personnel.
The Pathribal case was investigated by CBI which filed its chargesheet in 2007 against five army personnel,including the then Brigadier who later rose to become a Major General.
However,the trial in the case was stopped after the Army moved the Supreme Court claiming immunity for its personnel under AFSPA whereas CBI contended the five had allegedly indulged in murder of civilians for which the immunity could not be provided.
Additional Solicitor General P P Malhotra,on behalf of the army,has denied any fake encounter killing had taken place in the specific cases pertaining to Kashmir and Assam pending before the apex court.
The bench had earlier clubbed the two encounter killings of Pathribal and Assam while dealing with an application filed by CBI for vacating the stay granted by the apex court on the trial in a J&K court relating to the killing of 7 people by the army allegedly in retaliation to the killing of 36 civilians by militants at Chattisingpora in 2000.
Rawal had earlier argued that though the right of immunity under 197 CrPC was available to the officers,in the present case it is not sought by the accused but by senior Defence Ministry officers,which was contrary to law.