Murder: SC cites AFSPA,lets Army choose what kind of trial

The CBI had challenged the Army’s interpretation of Section 7 of the Armed Forces J&K (Special Powers) Act of 1990 — that prior sanction is required even before the CBI can file a chargesheet against a serving army officer.

It had said that the Pathribal case was one of “cold-blooded murder and the accused officials deserve to be meted out exemplary punishment.” It had argued that no prior sanction was required for prosecuting the Army personnel and the need to ensure “public confidence in the rule of law and dispensation of justice” warranted their prosecution.

With today’s verdict,however,the tug-of-war between the Army and the CBI over the question of prior sanction has come a full circle. The apex court made it clear that prosecution of the officers is possible only if the Centre sanctions it.

This is the very thing the Army said before the Srinagar court on May 24,2006 in an application: “No prosecution could be instituted except with the previous sanction of the Central Government in view of the provisions of Section 7 of the Armed Forces J & K (Special Powers) Act,1990 and,therefore,the proceedings be closed by returning the chargesheet to the CBI”.

On the other hand,the question of prior sanction does not even arise if the Army chooses to opt for the court martial route,the bench of Justices B S Chauhan and Swatanter Kumar observed.

Besides,the CBI will have to bow out as prosecuting agency in the Pathribal case.

The judgment,which also deals with a 1994 counter-insurgency operation by the Army in Saikhowa Reserve Forest of Assam,underlines the need to protect the sanction provision in AFSPA.

It says the defining factor which differentiates a “fake encounter” from a genuine operation is the presence of “malicious motivation” on the part of the officers.

When looking at a request for sanction for prosecution,the court said the “chain of events has to be looked into to find out as to whether the act is dutiful and in good faith and not maliciously motivated. It is the intention to act which is important”.

“For example,while conducting a raid,an official in his defence perform a duty which can be on account of some miscalculation or wrong information but such a duty cannot be labelled as an act in bad faith unless it is demonstrated by positive material in particular that the act was tainted by personal motives and was not connected with the discharge of any official duty. Thus,an act which may appear to be wrong or a decision which may appear to be incorrect is not necessarily a malicious act or decision,” the judgment authored by Justice B S Chauhan said.

The verdict further upheld the sanction law’s intent to protect a public servant,saying the “\presumption of good faith can be dislodged only by cogent and clinching material and so long as such a conclusion is not drawn,a duty in good faith should be presumed to have been done or purported to have been done in exercise of the powers conferred under the statute.”

Noting that the case has been hanging in limbo for over a decade,the Bench decided that future course would be time-bound.

The Army has to decide on either of the two — court martial or criminal trial — within the next eight weeks and communicate the decision immediately to the Srinagar Chief Judicial Magistrate,the Bench directed.

“In case the option is made to try the case by a court-martial,the said proceedings would commence immediately and would be concluded strictly in accordance with law expeditiously,” it said.

If the Army decides on a traditional open-court trial,the CBI,on receiving the information from the Army,will make an application to the Central Government for grant of sanction within four weeks.

The Centre,the Bench ordered,will have three months to decide on the question of sanction,and in case permission is granted,the criminal court concerned “shall proceed with the trial and conclude it expeditiously”.