It's for the Army to decide whether its personnel accused in fake encounters in Pathribal in Jammu and Kashmir and Assam be court-martialled or tried in regular criminal courts, the Supreme Court said on Tuesday.

Disposing of a batch of appeals, a Bench of Justices B.S. Chauhan and Swatanter Kumar said: “The competent authority in the Army shall take a decision within eight weeks whether the trial would be conducted by the criminal court or court-martial and communicate the same to the Chief Judicial Magistrate concerned immediately thereafter. 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.”

The Bench further said: “In case the option is made that the accused would be tried by the criminal court, the CBI shall make an application to the Central government for grant of sanction within four weeks from the receipt of such option.” In case such an application was filed, the Centre should take a final decision on it within three months. If the Centre granted sanction, the criminal court should proceed with the trial and conclude it expeditiously.

The Bench said: “If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. In order that the people may feel assured that there is an effective check against misuse or abuse of powers by members of the armed forces, it is necessary that a complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act should be thoroughly inquired into and, if it is found that there is substance in the allegation, the victim should be suitably compensated by the state and the requisite sanction under Section 6 of the Central Act should be granted for institution of prosecution and/or a civil suit or other proceedings against the person/persons responsible for such violation.”

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