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An Army court has recommended life imprisonment for a Captain involved in the staged killings of three men at Amshipora in Jammu and Kashmir’s Shopian district in 2020. The sentence will be final after it is confirmed by the Northern Army Commander.
Capt Bhoopendra Singh was court-martialled after a Court of Inquiry (CoI) and subsequent summary of evidence found that troops under his command had exceeded their powers under the Armed Forces (Special Powers) Act.
On July 18, 2020, troops led by the officer shot dead Imtiyaz Ahmed, Abrar Ahmed, and Mohammed Ibrar from Jammu’s Rajouri district, and branded them terrorists. A Special Investigation Team (SIT) of the Jammu and Kashmir Police filed a chargesheet against three people including the officer for staging the encounter.
What is the process in the military?
When the Army wants an allegation against its personnel investigated, it first sets up a CoI for the purpose. This stage is similar to the registering of a First Information Report (FIR) by police. A Court of Inquiry investigates the complaint, but cannot award a punishment.
The CoI records the statements of witnesses, which is comparable to the examination of witnesses by a police officer under Section 161 of the Code of Criminal Procedure (CrPC).
Based on the findings of the CoI, a tentative chargesheet is drawn up by the commanding officer of the accused officer, which is akin to the police filing a chargesheet.
After this, the hearing of charges takes place, which is like the initial summoning of an accused by the magistrate in a case involving civilians. The summary of evidence is then recorded, which is akin to the framing of charges by the magistrate.
Once this process has been completed, a general court martial (GCM) is ordered. This stage is like the conduct of a trial by any judicial court in matters involving civilians.
Col Mukul Dev (retd), a veteran military lawyer, told The Indian Express that the difference in military and civilian cases comes at this stage.
“While in a magisterial court, the magistrate announces a sentence when the trials are over, the GCM announces this in the form of recommendations, which are sent to the command concerned for legal vetting,” Col Dev said.
The Amshipora case
The GCM’s recommendation of life imprisonment for the Captain will be sent to the Army’s Northern Command, and will be legally vetted by senior officers of the Army’s Judge Advocate General (JAG) Department.
The officers will advise on legal infirmities in the trial sentence, if any, or whether they find it to be disproportionate; and on any possible remission of the sentence.
The Northern Army Commander will then direct the convening authority — who is the General Officer Commanding (GOC) of the division — to confirm, remit, or revise the sentence in case the punishment has to be enhanced.
“As per rules, the Army Commander does not require permission to decide on remission of a sentence. But if he wants to enhance the sentence, the case must go back to the same jury of the GCM for revision,” Col Dev said.
Legal recourse available
Under section 164 of the Army Act, the accused can file a pre-confirmation petition as well as one post- confirmation. A pre-confirmation petition will go to the Army Commander, who may look into its merits.
Col Dev explained that the accused can also file a post-confirmation petition, but this must be filed with the government since the officer is cashiered — his ranks are removed and he is dismissed from service — after confirmation of the sentence by the Army commander.
After these options have been exhausted, the accused can approach the Armed Forces Tribunal, which can suspend the sentence.
A recent example is from 2017 — the Tribunal suspended the life sentences awarded to five Army personnel, including two officers, in the Machil fake encounter case of 2010. The victims in that case were allegedly promised jobs by a J&K Special Police Officer (SPO) and his partners, and brought to Machil to be handed over to the Army for Rs 50,000 each. They were subsequently killed, allegedly in a staged encounter, by the troops near the Pakistan border.
Instances of conviction
While the exact number of convictions in the Army is not available, Col Dev, who has served in the Northern Command, said there have been several convictions over the years. J&K, which since the 1990s has reported the largest number of human rights violations by security personnel, comes under the Northern Command.
“From the 1990s till date, it is not less than 100 at least. There was the case of Lance Havaldar Jagtar Singh of Artillery and that of Naib Subedar P Sharma of a Rashtriya Rifles battalion who are currently serving life,” Col Dev said.
He added that there were many other cases in which Army personnel were serving life sentences for other kinds of crime, including fratricide.
As per official data, the government received 108 complaints about human rights violations allegedly committed by the Army, and eight by the Air Force between 2017 and July 2022. In 2021, the government told Parliament that many of the allegations had eventually turned out to be false.
In 2020, the Army established a human rights cell at its headquarters in New Delhi to handle cases of alleged human rights violations.
